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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Hioliographic 

Sdmoes 

CarpoFatiQn 


33  WIST  MAM  STRUT 

VniSTIR,N.Y.  MSSO 

(7U)I73-4S03 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Instituta  for  Historical  Microraproductions  /  Institut  Canadian  da  microraproductiont  historiquaa 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibiiographiques 


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et  de  haut  en  bas,  en  prenant  la  nombre 
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DIGEST 


/ 


FIRE  mSURANCE  DECISIONS 


n 


THE  COURTS  OF  THE  UNITED  STATES, 
GBEAT  BRITAIN  AND  CANADA. 


BEINQ   A 


SUPPLEMENT  OR  CONTINUATION  OF  THE  THIRD  AND  LAST  EDITION 
OF  LITTLETON  &  BLATCHLEY,  CLARKE,  AND  BATES'  DIGEST. 

FROM  1872  TO  1882. 


By  GEORGE  A.  CLEMENT, 

OV  TUB  NEW   YORK  BAB. 


NEW  YORK: 
BAKER,  VOORHIS  &  CO.,  LAW   PUBLISHERS, 

00    NASSAU    STREl!^. 
1882. 


id 


^Mered,  accoraing  to  Act  of  Congress,  !•  the  year  eighteea  hundred  and  eighty -two,  by 

BAKER       JORHIS  &  CO., 

Iq  the  Office  of  the  Librwiao  of  Congress,  at  Waihiogton. 


MAY  3  0 1922 


BAKRR  *  GODWIN,  PRINTERS, 
No.  V>  Park  Row,  Ne*  York. 


I 


PREFACE. 


This  volume  covers  the  period  extending  from  1872  to  1882, 
and  is  designed  as  a  supplement  or  continuation  of  the  third  and 
last  edition  of  the  well  known  work  of  Littleton  and  Blatchley  (ed- 
ited by  Mr  Bates),  published  in  1873.  It  contains  an  addition  of 
abont  1,200  cases.  On  account  of  the  familiarity  acquired  in  the 
use  of  the  first  volume,  it  has  been  deemed  best  to  follow  substan- 
tially the  same  plan  and  arrangement  in  this.  Beginning  where 
Mr.  Bates  ceased,  I  have  personally  taken  each  volume  of  the 
official  reports  of  all  the  courts,  publishec".  in  the  United  States, 
Oreat  Britain  and  Canada,  to  1882,  and  faithfully  endeavored  to 
digest  from  each  reported  case  on  the  subject  everytliing  of  value 
to  both  the  underwriter  and  lawyer.  I  have  also  included  the 
cases  contained  in  the  various  law  and  insurance  journals  to  1882, 
not  taken  from  the  regular  or  official  reports. 

From  the  number,  importance,  and  character  of  the  cases  de- 
cided during  tlie  past  ten  years,  one  cannot  fail  to  be  impressed 
with  the  fact  that  the  law  of  fire  insurance  has  received  new  and 
material  light  and  development.  True,  conflicting  opinions  and 
decisions  exist,  and  doubtless  will  continue  to  be  announced  and 
published,  tending  to  add  to  the  confusion  and  uncertainty,  but 
it  must  be  remembered  that  such  is  always  the  case  in  the  es- 
tablishment of  legal  principles  applicable  to  comparatively  new 
subjects.  If  underwriters  and  their  representatives  would  cease 
to  be  purely  technical,  and,  instead  of  planting  themselves  upon 
their  policies  solely  as  contracts,  would  seek  to  develop  and 
make  plain  the  principles  involved  in  their  business,  they  would 
receive  more  frequently  just  consideration  at  the  hands  of  both 
courts  and  juries.  Judges  most  clearly  and  satisfactorily  decide 
when  they  not  only  understand  the  policy  of  insurance  as  a  naked 
contract,  but  are  also  made  to  comprehend  the  reason  of  the  partic- 


w^^ 


IV 


PBEFAOB. 


nlar  provision  upon  which  reliance  is  placed — its  practical  course 
and  operation,  and  evil  eflfects,  if  not  applied  and  enforced. 

This  book  being  designed  for  the  underwriter  as  well  as  the 
lawyer,  it  may  not  be  out  of  place  to  caution  the  former  that  a 
particular  case  is  not  authority  out  of  the  territorial  limits  of 
the  State  whose  court  pronounces  the  decision,  and  is  available 
only  as  argument  in  other  jurisdictions ;  and,  also,  that  it  is  not  safe 
to  base  an  act,  statement,  or  declaration  upon  any  one  particular 
case  without  first  comparing  all  bearing  on  the  subject.  Courts 
quite  frequently  distinguish  cases,  and  the  more  intelligently  this 
is  anticipated  and  determined  by  the  underwriter  or  lawyer,  the 
more  satisfactory  and  successful  the  result. 

No  one  could  more  fully  realize  actual  and  possible  errors 
than  myself,  and  it  would  be  esteemed  a  favor  to  be  advised  of  all 
such  not  indicated  in  the  errata.  My  thanks  are  due  to  William 
E.  Iliflf,  Esq.,  of  the  New  York  Bar,  for  aid  in  preparation  of  the 
Tables  of  Cases  and  Reports,  and  generally  in  putting  the  work 
through  the  press. 

In  the  hope  that  the  book  will  be  of  some  assistance  in  ascer- 
taining the  true  principles  of  the  law  of  fire  insurance,  I  have 
satisfaction  for  many  hours  of  labor. 

Q.  A.  CLEMENT. 
Kbw  Tore,  Fbbbuabt  22,  1882. 


$ 


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Hi 


TABLE  OF  CONTENTS. 


PAGB 

ADJUSTMENT 1 

AGENT 4,  389 

ALIENATION  23, 389 

ALTERATION 36,  890 

APPLICATION 37, 390 

ARBITRATION  AND  APPRAISEMENT 40.  890 

ASSIGNMENT 43,  390 

BONDS  OP  AGENTS 48 

BOOKS  OF  ACCOUNT  AND  VOUCiIERS 40 

BURDEN  OP  PROOP 50 

BURNING  BY  DESIGN 51 

BY-LAWS  AND  CONDITIONS 53 

CANCELLATION 54,  390 

CERTIFICATE 6o'  390 

COLLISION '    68 

CONCEALMENT ,[[,,  64,  391 

CONSTRUCTION [[,]  66^  391 

CONSUMMATION  OF  CONTRACT '   69 

CONTRIBUTION 74,  393 

COVENANT  TO  INSURE '   81 

DAMAGES 81 

DEFINITIONS 85 

DESCRIPTION [ ['_[  86 

DISTANCE  OP  OTHER  BUILDINGS 87,  393 

ENCUMBRANCE 87,  398 

ENTIRETY  AND  DIVISIBILITY  OP  POLICY 91 

ESTOPPEL 93  398 

EVIDENCE 103,394 

EXAMINATION  UNDER  OATH 117 

EXECUTIONS "   "  118  394 

liXPLOSIONS '119 

FALLEN  BUILDING .......[......[.......  123 

FOREIGN  COMPANY .' '.'.',[  127,  394 

FRAUD  AND  FALSE  SWKARING 134]  395 

GARNISHMENT  OR  TRUSTEE  PROCESS 138 

GOODS  IN  TRUST  OR  ON  COMMISSION 189 

ILLEGALITY  OP  CONTRACT I43 


y{  TABLE  OF  CONTENTS. 

PAOK 

INCREASE  OF  RISK 1*^'  ^^^ 

INSOLVENCY ^* 

INSURABLE  INTEREST ^^^'  '^^ 

INTEREST  IN  POLICY 159,  397 

LIGHTING 1^5'  8^'' 

LIMITATION  CLAUSE 167,897 

MORTGAGOR  AND  MORTGAGEE 173,  397 

MUTUAL  COMPANIES 183,  398 

NEGLIGENCE 818 

NOTICE  OP  LOSS 214,899 

OTHER  INSURANCE 217, 899 

OVERVALUATION 228, 401 

PAROL  CONTRACT 230, 401 

PAYMENT  OF  LOSS 239 

PLACE  OP  MAKING  CONTRACT 240 

PLEADING  AND  PRACTICE 241,  404 

PREMIUM 246.403 

PROOFS  OF  LOSS 251,  408 

QUESTIONS  FOR  COURT  AND  JURY 2G8. 405 

REBUILD  OR  REPLACE 271 

RECOVERY  BACK  OF  LOSSES  PAID 273 

REFORMATION  OF  POLICY 274,405 

RE-INSURANCE 277 

REMOVAL  OF  CAUSES  TO  UNITED  STATES  COURT 284.  405 

RENEWAL  OF  POLICY 286,  40ft 

REPAIRS 289,  406 

RISK 290,  4tl6 

STORING  OR  KEEPING 290,  406 

SUBROGATION 802, 407 

TAXATION 305 

THEFT 806 

TITLE 300,  408 

TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE 320 

USAGE  AND  CUSTOM 320 

USE  AND  OCCUPATION 823,  409 

VACANT  OR  UNOCCUPIED 328, 409 

VALUED  POLICY 341 

WAIVER 342, 410 

WARRANTY  AND  REPRESENTATION 854, 411 

WATCHMAN 376 

WHAT  PROPERTY  IS  COVERED  BY  POLICY  378 

WHO  MAY  SUE 384,414 


PAOK 

143,  395 

49 

150,  ;i96 

159,  397 

165,  897 

167,  897 

173,  397 

183, 398 

218 

214,  899 

217,899 

228, 401 

230,401 

239 

240 

241,404 

246,  408 

251,  408 

208. 405 

271 

273 

274,  405 

277 

284,  405 

286,  40ft 

289,  406 

290,  4t)6 
290,  406 
802, 407 

305 
806 

300,  408 
320 
320 

823,  409 

328. 409 
341 

342. 410 
354,411 

376 

378 

384,  414 


TABLE  OF  CASES. 


Abrahams  v.  Agricultural  Ins.  Co.  381. 
Acker  v.  Hite,  212. 
Adams  v.  Greenwich  Ins.  Co.  79,  96, 
109,  382. 
V.  Pittsburg  Ins.  Co.  321. 
iEtna  Ins.  Co.  v.  Baker,  182,  387. 
V.  Burns,  329. 
V.  Hannibal  &  St.  J.  R. 

R.  302. 
y.  Johnson,  51,  82. 
V.  Myers,  334. 
V.  Reed,  8. 
V.  Resh,  65,  369. 
V.  Sparks,  258 
Agricultural  Ins.  Co.  v.  Montague,  157, 

812. 
Akin  V.  L.L.  &Q.Ins.  Co  171,178,253. 
Albion  Lead  Works  v.  Williamsburg 

City  Ins  Co.  147,  209,  338,  378. 
Alexander  v.  Germania  Fire  Ins.  Co. 

861,  368. 
AUemania  Fire  Ins.  Co.  v.  Hurd.  223. 
Allison  V.  Phoenix  Ins  Co.  220. 
Alston  V.  Ins.  Co.  336,  337. 
Amazon  Ins.  Co.  v.  Wall,  30. 
American  Basket  Co.  v.  Farmville  Ins. 

Co.  312. 
American  Ins.  Co.  v.  Avery,  207. 
V.  Butler,  137. 
V.  Crawfonl,  3. 
V.  Cutler,  206. 
V.  Foster,  338. 
V.  Galhigher,  196. 
V.  Gallutiu,  18, 101. 
V.  Gilbert,   37,  64, 

356,  357. 
V.  Henley,  207, 
V.  Klink,  206. 
V.  Luttrel],  101. 
V.  Fadficld,  329. 
V.  Pettijohn,  184. 
V.  Story,  209,  212 
V.   Wellman,     135, 

•   213 
V.  WoodriiflF,  198. 


Am.  Cent.  Ins.  Co.  v.  McLanathan,  16, 
86,101,271,272, 
807,  308. 
V.  Rothschild,  62, 
384. 
Andes  Ins.  Co.  v.  Fish,  101,  108,  168, 
V.  Shipman,  100.  101, 
376. 
Angell  V.  Hartford  Ins.  Co.  8,  15. 
Appleby  v.  Astor  Ins.  Co.  3x4. 
Appleton  Iron  Co.  v.  British  America 

Ins.  Co.  08,  181,  350. 
Archambeault  v.  Galamcau,  179. 
Argall  V.  Ins.  Co.  399,  403. 
Arkell  v.  Commerce  Ins.  Co.  85,  166. 
Armenia  Ins.  Co.  v.  Paul,  65,  350. 
Arthur  v.  Homestead  Fire  Ins.  Co.  172. 
Ashworth  v.  Builders'  Mut.   Ins.  Co. 

829. 

Atlantic  Ins.  Co.  v.  Manning,  83,  338. 

Aurora  Fire  Ins.  Co.  v  Johnson,  49, 

120,228,241,242. 

V.  Kranich,  66, 

101,  252.  287. 

Australian  Agricultural  Co.  v.  Sanders, 

220. 

Babson  v.  Thomaston  Ins.  Co.  153. 
Badger  v.  Glen's  Falls  Ins.  Co.  Gil,  117, 
253,  266. 
V.  Phoenix  Ins.  Co.  206. 
Baile  v.  Equitable  Fire  Ins.  Co.  134. 
V.  St.  Joseph  F.  &  M.  Ins.  Co. 
80,  237,  238,  267,  295. 
Baillie  v.  Provinciiil  Ins.  Co,  13. 
Baker  v.  Home  Life  Ins.  Co.  11,  3<53. 
Baldwin  v.  Chouteau  Ins.  Co.  70,  247. 
V.  Hartford  Ins.  Co.  35,  92. 
V.  Phoenix  Ins.  Co.  35,  174. 
Baley  v.  Homestead  Fire  Ins.  Co.  89. 
Ball  V.  Watertown  Ins.  Co.  49, 
Ballagh  v.  Royal  Mut.  Ina.  Co,  64,  211. 

890. 
Bammesel  v.  Brewers' Fire  Ins.  Co.  84, 
263,  848. 


Vlll 


TABLB  OP  CASES. 


Bang  V.  FannviUe  Ins.  Co.  247. 
Bank  of  Hamilton  v.  Western  Ins.  Co. 

387. 
Barber  v.  P.  &  M.  Ina.  Co.  801,  397. 
Bardwell  v.  Conway,  2, 38,  78,  lOtt,  205. 
Barr  v.  Ins.  Co.  of  N.  A.  236. 
Barteau  v.  Phoenix  Mat.  Life  Ins.  Co. 

361. 
Bartlettv.  Chouteau  I'ns,  Co.  133. 
Basch  V.  HumbolcU  Ins.  Co.  246,  253. 
Bassall  v.  American  Fire  Ins.  Co.  14, 

53. 
Bassell  v.  Americnn  Fire  Ins.  Co.  383. 
Batchelor  v.  People's  Ins.  Co.  34,  114, 

353. 
Bates  V.  Commercial  Ins.  Co.  23. 

T.  Equitable  Fire  Ins.  Co.  23, 
384. 
Bayly  v.  Loud.  &  Lane.  Ins.  Co.  145, 

268,  298,  399. 
Beals  V.  Home  Ins.  Co.  271. 
Beaver  Ins.  Co.  v.  Trimble,  186. 
Beck  V.  Hibernin  Ins.  Co.  87,  360. 
Behlcr  v.  German  Ins.  Co.  20, 212. 335. 
Belding  v.  Floyd,  349. 
Bell  V.  Lycoming  Fire  Ins.  Co.  99,  257, 

264. 
Bellaty  v.  Thomaston  Ins.  Co.  354. 
Ben.  Franklin  Ins.  Co.  v.  Gillett,  102, 

130,275,405. 
V.  Weary,  19. 
Bennett  v.  City  Ins.  Co.  7. 

T.  Lycoming   Mut.   Ins.  Co. 

215. 
V.  Maryland  Fire  Ins.  Co.  249, 

'253 
V.  N.  B.  &  M.  Ins.  Co.  113, 
300,  301. 
Benson  V.  Ottawa  Ins.  Co.  65,  203. 
Bergan  v.  Manufacturers'  and    Mer- 
chants' Ins.  Co.  390,  408. 
Beruheim  v.  Beer,  103. 
Berthold  v.  Clay,  385. 
Bicknell  v.  Lancaster  City  Ins.  Co.  158. 
Bigelow  V.  Libby,  11)3. 
Billington  v.  Canadian  Mut.  Fire  Ins. 
Co.  12,  322,  269. 
y.  Provincial  Ins.  Co.  16, 
99,  225. 
Birmingham  v.  Farmers'  Joint  Stock 

Ins.  Co.  259. 
Birmingham  Fire  Ins  Co.  v.  Kroegher 

299. 
Bishop  V.  Clay  Ins  Co.  31,  103. 
Black  V.  Winnishick  Ins.  Co.  168. 
Blackstone  v.  Allcmania  Firo  Ins.  Co. 
278. 


Blaesor  v.  Milwaukee  Mut.  Ins.  Oo. 

61,  360. 
Bleakley  v.  Niagara  Dist.  Ins.  Co.  16, 

9L 
Bloomer  v.  Phoenix  Ins.  Co.  367,  877. 
Blossom  T.  Lycoming  Fire  Ins.  Co. 

339,  348. 
Boatman's  Ins.  Co.  v.  Parker,  130. 
Bodine  v.  Exchange  Piro  Ins.  Co.  5, 

346. 
Bocteher  v.  Hawkeyo,  15. 
Boot  &  Shoe  Mfg.  Ins.  Co.  v.  Molroso 

Society,  196. 
Borden  v.  Provincial  Ins.  Co.  63. 
Boutelle  v.  Worcester  Fire  Ins.  Co. 

229,313. 
Bowman  v.  Agricultural  Ins.  Co.  106, 
847. 
T,  Franklin  Fire  Ins.  Co.  87, 
91. 
Bowser  v.  Lamb.  204. 
Hradfield  v.  Union  Mut.  Ins.  Oo.  873. 
Bradford  v.  Homestead  Fire  Ins.  Co. 

331,  338. 
Brandaf  v.  St.  Paul  Fire  Ins.  Co.  99, 

386. 
Bredow  v.  Erie  Co.  Mut.  Ins.  Oo.  808, 

411. 
Brenner  v.  Ins.  Co.  183,  145. 
Briggs  V.  N.  B.  &  M.  Ins.  Co.  180. 
Brink  v.  Hanover  Firo  Ins.  Co.  114, 
360,  267,  353. 
V.  Merchants'  Ins.  Co.  109,  110, 
326,  327. 
British  Am.  Ins.  Co.  v.  Wilkinson,  878. 
Broadhead  v.  Lycoming  Ins.  Co.  18, 

100, 101. 
Brogan  v.  Manufacturers' &  Mcrchiints' 

Ins.  Co.  3fi0,  408. 
Brown  v.  Hartford  Fire  Ins.  Co.  8. 
Browning  v.  Home  Ins.  Co.  89, 37, 178, 

320,  363. 
Biucck  V.  Phoenix  Ins.  Co.  288,  878. 
Brugger  r.  State  Investment  Ins.  Co. 

9,  113,  150. 
Brunswick  Savings  Inst.  v.  Commer- 
cial Union  Ins.  Co.  31,  174. 
Bryan  v.  Peabody  Ins,  Co  88  800. 
Bryce  v.  Lorillard  Firo  lus.  Co.  874, 

855, 856. 
Buchanan  v.  Exchange  Piro  Ins.  Oo. 
8,  208,  381. 
v.  Westchester    Co.    Mut. 
Ins.  Co.  26. 
Buck  V.  Globe  Ins.  Co.  134. 
Buckley  V.  Columbia  Ins.  Oo.  804, 806, 

898. 


I 


TABLE  OF  OASBS. 


w 


t.  Ins.  Oo. 

[n9.  Co.  16, 

..  367,  877. 
re  Ids.  Co. 

:er,  120. 
Ids.  Co.  5, 

.  V.  Molroso 

3o.  62. 

re  Ins.  Co. 

as.  Co.  106, 

Ins.  Co.  87, 


5,  Oo.  872. 
ire  Ins.  Co. 

[ns.  Co.  99, 

DS.  Co.  802, 

[5. 

Co.  120. 

IS.  Co.  114, 

0.  too,  110, 

{insoD,  278. 
Ins.  Co.  18, 

Mercliiints' 

s.  Co.  2. 
20, 37, 178, 

288,  873. 
3Dt  Ins.  Co. 

V.  Comnier- 
,  174. 
28  800. 
iH.  Co.  274, 

ro  Ins.  Co. 

Co.    Mut. 

)o.  204,  206, 


I 


Buell   V.  Connecticut   Life  Ins.   Co. 

362, 
Burbank  v.  McCluer,  46. 
Burger  v.  Farmers'  Mut.  Co,  43.  104. 
Burleigh  v.  GebliHrd  Ins.  Co.  375, 
Burnb'jm  v.  Lamar,  44. 

V.  N.  W.  Ins.  Co.  149. 
Burns  v,  Collins,  175. 
Burton  v.  Buckeye  Ins.  Co.  170. 
Bush  V.  ^tna  Ins.  Co.  385. 
V,  Ins,  Co,  231, 

V.  Westchester  Fire  Ins.  Co,  11. 
Butler  V,  Standard  Fire  Ins.  Co.  315, 

384. 
Byers  v.  Farmers'  Ins.  Co.  33,  o9,  358. 
V.  Ins.  Co.  372,  378. 


Cady  V.  Imperial  Ins.  Co.  355, 

Cahill  V.  Andes  Ins.  Co.  5, 

Caley  v.  Hooper,  163, 

Cammell  v.   Beaver  &  Toronto  Fire 

Ins.  Co.  61,  62. 
Campbell  v.  ^tna  Ins.  Co.  217. 

V,  Victoria  Mut,  Ins.  Co,  4 13. 
Canada  Farmers'  Ins.  Co.  v,  Watson, 

273, 
Canada  Fire  Ins.  Co.  v.  Northern  Ins, 

Co.  365. 
Canada  Ins.  Co.  v.  Northern  Ins.  Co, 

282. 
Canada  Land  Co.  v,  Canada  Agricul- 
tural Ins.  Co.  53,  229,  338. 
Cann  v.  Imperial  Fire  Ins.  Co.  257. 
CarlxTry  v.  German  Ins.  Co.  241. 
Card  V.  Plucnix  Ins.  Co.  30,  349. 
Carr  v.  Hihernia  Ins.  Co.  86,  100. 
Carraway  v.  Merchants'  Mut.  Ins.  Co. 

Hi  9. 
Carrigan  v.  Lycoming  Ins.  Co  23, 100, 

143,  303,  318. 
<^arroll  v.  Ch;irter  Oak  Ins.  Co.  343. 
Cary  v.  Nagel,  184. 
Caslinn  v.  Norlhwestem  Nat.  Ins,  Co, 

353,  254.  277, 
Casbman  v,  Lond.  &  Liv.  Fire  Ins,  Co, 

91,  343. 
Casscrly  v.  Manners,  380. 
Castner  v.  Farmers'  Mut.  Ins.  Co,  318. 
Cerl  V.  Home  Ins.  Co.  165. 
Chamberlain  v.  Ins.  Co,  331,  385, 
Chandler  v,  Commerct  Fire  Ins.  Co. 
156,  313,  333. 
V.  St.  Paul  Ins.  Co.  153, 169, 
Chaplain  v.  Provincial  Ins.  Co.  238, 

335, 
Chapman  v.  Gore  Dist.  Mut.  In8.Co.46, 


Chase  v.  People's  Fire  Ins.  Co.  18, 101. 
Chatillon  t.  Canadian  Mut.  Fire  Ins. 

Co.  38,  88,  97,  311. 
Check  V.  Columbia  Fire  Ins.  Co.  64, 

97,  154. 
Chicago  Build.  Soc.  v.  Crowell,  81. 
Church  V.  Lafayette  Fire  Ins,  Co.  247. 
Citizens'  Ins,  Co.  v.  Parsons,  394. 
Citizens'  Fire  Ins.  Co.  v.  Short,  229. 
City   t'lve  Cent  Sav.  Bank  v.  Penn. 

Ids.  Co.  79,  901. 
City  Ins.  Co,  v.  Bricker,  39. 
City  of  Alton  v.  .^tna  Fire  Ins.  Co. 

133. 
City  of  Leavenworth  v.  Booth,  130. 
Citv  of  Mempliis  v.  Ins.  Co.  183. 
Clay  Fire  Ins.  Co.  v.  Bec^,  309. 
Clay  Ins.  Co.  v.  Huron  Man.  Co.  106, 

131,  "^09. 
Clark  V.  Brand,  233, 
v.  Craig,  140. 
v.  German  Mut.   Fire  Ins.  Co. 

314. 
V.  Mobile,  137. 

V.  Scottish  Imperial  Ins.  Co.  156, 
397. 
Clippingerv.  Miss.  Valley  Ins.  Co,  284. 
CobI)  v.   Ins,  Co.  N,  A,  68,  219,  253, 

277, 
Cochran  v.  Ins,  Co,  209. 
Colin  V,  Virginia  Fire  Ins,  Co.  163. 
Cole  V.  Favorite,  139. 
Collins  V.  Phosnix  Ins.  Co.  72, 299,  350. 
Collingiidge  v.  Royal  Exchange  Assur. 

Co.  83. 
Colonius  V.  Ilibernia  Fire  Ins.  Co.  3. 
Colt  V.  Phoenix  Fire  Ins.  Co,  26. 
Columbia  Fire  Ins.  Co.  v.  Bolton,  193. 
v.K°nyon,l30, 
193. 
Columbia  Ins.  Co  v.  Buckley,  204,205. 
v.Masonheimer,  193. 
Combs  V.  Shrewsbury  Mut.  Fire  Ins. 

Co.  47,  399. 
Commercial  Ins.  Co.  v.  Ives,  4,  100. 
V.  liobinson,  40, 
120. 
Commercial  Union  Ins.  Co.  v.  Canada 

Mnnfg.  Co.  53. 
Commercial  Union  Ins,  Co.  v.  Scam- 

mon,  389, 
Commonwealth  v,  IIide&  Leather  Ins. 

Co,  153.  188.  324,  344,  380. 
Commonwealth  Fire  Ins.  Co.  v.  llunt- 

zingcr.  32,  374, 
Commonwealth  v.  Mass,  Ins.  Co.  187, 

188, 105,  196, 107, 


TABLE  OF  OASES. 


\- 


Commonwealth  v.  Mtjchauics' Ins.  Co. 
188.  199,  205. 
V. Merchants'  &  Mech. 

Ins,  Co.  210. 
V.  Monitor  In?  Co.188. 
Cone  V.  Niagara  Fire  Ins.  Co.  154,161, 

302.  347. 
Conn.  Fire  Ins.  Co.  v.  Erie  R.  R.  Co. 

303. 
Con8ol.Rea!E8t.Co.v.Ca3liow,24fl,279. 
Continental  Ins.Co.  v.  Horton,  1 05, 2 1 8. 
v.Hulm  in,  113.165, 

174,  18U,  lal. 
V.  Ji-nkins,  2H4. 
v.Kasey,  15,95, 132, 

284,  357. 
v.Lip|)oId,253,25«. 
V.  Randolph,  116. 
V.  Ware,  229,  374. 
Cook  V.  Continental  Ins.  Co.  335. 
Cooke  V.  .^tna  Ins.  Co.  236. 
Co-operative  Assoc,  v.  Leflore,358,363. 
Copp  V.  German  Am.  Ins.  Co.  375. 
Cornish  v.  Farm  Building  Fire  Ins. 

Co.  146. 
Corrigan  v.  Conn.  Ins.  Co.  33'2. 
Couch  v.RochcsterGerman  In8.Co.407. 
Cowan  V.  Iowa  State  Ins.  Co.  27. 
Crane  v.  City  Ins.  Co.  391,  393,  395. 
Crawford  v.  Equitable  Ins.  Co.  150. 

V  Wcsturn  Ins.  Co.  274. 
Crawford  Oo.  Mut  Ins.  Co.  v.  Coch- 
ran, 197,  253. 
Creighlon  v.  Homestead  Fire  Ins.  Co. 

118.  164. 
Crockford  v.  Lend.  &  Liv.  Fire  Ins. 

Co  300. 
Croghan  v.  Underwriter's  A<,'ency,  280. 
Critchett  v.  American  Ins.  Co.  213. 
Crowley  v.  Agricultural  Mut.  Ins.  Co. 

185. 
Crozier  v.  Pliojnix  Ins.  Co.  43,  342. 
Cumberland  Hone  Co.  v.  Andes.  Ins. 

Co.  153. 
Cumiugs  V.  Ilildretli,  195. 

V.  Sawyer,  190, 
Cummings  v.  Ins.  Co.  45,  85. 
Cammins  v.  Agricultural  Ins.  254,330. 
Curtis  V.  Home  Ins.  Co.  168. 

Dacey  v.  Agricultural  Ins.  Co.  31,  84, 

92,  101,  368. 
Dahlberg  v.  St. Louis  Mut.  Ins.Co.  223. 
Dailcy  v.  Westchester  Fire  Ins.  Co. 33. 
Dakln  v.  Liv.  L.  &  Q.  Ins.  Co.  203,  315, 

386. 
Daly  V.  National  Life  Ins.  Co.  184. 


Daniels  v.  Andes  Ins.  Co.  100. 
V.  Citizens'  Ins.  Co.  13f?. 
V.  Equitable  Ins.  Co.  148. 
V.  Meinhard,  44. 
Darrell  v.  Tibbetts,  3(i5. 
Davenport  Fire  Ins.  Co.  v.  Moore.Sll. 
Davey  v.  Glen's  Falls  Ins  Co.  18. 
David  V.  Williamsburg  Ins.  Co.  158. 
Davidson  v.  Phoenix  Ins.  Co.  108. 
Davies  v.  Canada  Farmtrs'  Ins.  Co.  107, 
170. 
V.  Home  Ins.  Co.  150, 
v.  Lamar  Ins.  Co.  19. 
V.  Stewart,  170. 
Dayton  Ins. Co.v.Kelley,5,37,233,3l4. 
Dean  v.  Equitable  Fire  Ins.  C*).  275. 

V.  Western  Ins.  Co.  101,  2C9,;>8(». 
Denkler  v.  Ins.  Co.  143. 
Dennison  v.  Phoenix  Ins.  Co.  335. 
Dermain  v.  Home  Mut.  Ins.  Co.  27. 
Derrick  v.  Lamar.  44,  108. 
Devens  v  Mechanics'  &  Traders'  Ins 

Co.  20,  295,  351,  352. 
Devine  v.  Home  Ins.  Co.  344. 
Uewees  v.  Manhattan  Ins.  Co.  3'>4. 
De  Grove  v.  Metropolitan  Ins.  Co.  10, 

233,  257. 
De  Wolf  V.  Capital  City  Ins.  Co.  313. 
Dick  V.  Franklin  Fire  Ins.  Co.  178. 
Dickinson  Co.v. Miss.  Valley  Ins.Co.  10. 
Dick8<m  V.  Provincial  Ins.  Co.  319. 
Dilliber  v.  Home  Life  Ins,  Co.  363. 
Dimming  v.  Pha;nix  Ins.  Co.  233. 
Dingee  v.  Agricultural  Ins.  Co.  3"J0. 
Dobson  V.  Jordan,  10. 
Doggs  v.  Norihwestern  Nat.   Ins.  Co. 

134. 
Dolan  v.  JJtna  Ins.  Co.  137. 
Doibier  v.  Agricultural  Ins.Co.  17 1 ,24 1 . 
Dolliver  v.  St  Joseph  Fire  Ins.  Co.21, 

63.  814,  374. 
Doran  v.  Franklin  Ins,  Co.  398,  400. 
Dorn  v.  Germania  Ins  Co  30. 
Douglass  V.  Atlantic  Mut.  Life  Ins.Co. 

133. 
Downs  V.  Hammond,  191. 
Dow.«  V.  Fanniel  Hall  Ins.  Co.  123. 
Doyle  V.  Cont'al  Ins.  Co.  12'.t,  133,  284. 

V.  Pha'nix  Ins.  Co.  239. 
Drake  v.  Fanners'  Uuion  Ins  Co.  268. 

V.  Rollo,  83 
Dunlop  v.  Avery,  183. 

Eagan  v.  ^Etna  Fire  Ins.  Co.  848. 
Eumes  v.  Home,  Ins  Co.  71,  235. 
Eclectic  Life  Ins.  Co.  v.  Fahrenburg, 
6,  16. 


TABLE  OP  CASES. 


1^1 


00. 
138, 
).  148. 


Moore,  311. 

:;o.  18. 

Co.  158. 
0.  168. 
Ins.ColO:, 

0. 

9. 

7,2a3,3U. 

Ci).  275. 
II,  2«9,:J80. 

}.  33i. 
Co.  27. 

rtidurs'  Ins 

U. 

lo.  3".4. 
Ins.  Co.  10, 

a.  Co.  in  2. 
Co.  1T8. 
,'Ius.Co.lO. 
L!o.  21 ». 
Co.  3o;i. 
o.  232. 
Co.  U'JO. 

at.  Ins.  Co. 

r. 

Jo.171,241. 
Ins.  Co.21, 

398,  400. 

36. 

Liile  Ins. Co. 


Co.  122. 

5!i,  132,  284. 

130. 

m.  Co.  268. 


o.  848. 

,235. 

^\hl■enburg. 


I 


I 


m 


Eclipse  Ins.  Co.  v.  Schowed,  144. 
Edgerly  v.  Farmers'  Ins.  Co.  341,  257, 

202. 
Edwards  v.  Farmers'  Ins.  Co.  191,  358. 

V.  Ins.  Co.  8,  214. 

V.  Mississippi  Vailey  Ins.  Co. 
108.201. 

V.  West,  104. 
Eilenbcrgcr  v.  Protective  Mut.  Ins. Co. 

18. 
Elliot  V.  National  Ins.  Co.  29. 
Elliott  V.  Preston,  138. 
Ellis  V.  Albany  City  Ins.  Co.  231. 
Ely  V.  Ely,  101. 
Embree  v.  Sliideler,  185,  191. 
Enterprise  Ins.  Co.  v.  Pari-^Mt,  353. 
Erhman  v.  Teutonia  Ins.  Co.  395. 
Ervin  v.  N.  Y.  Cent.  Ins.  Co.  52,  381, 
Everette  v.  Continental  Ins.  Co.  21)2 
Excelsior  Fire  Ins.  Co.  v.  Royal  Ins. 

Co.  4,  0,  175,  278. 
Ex  parte  Norwood,  254,  277. 


Fair  v.  Manhattan  Ins.  Co.  879. 

V.  Niagara  Dist.  Mut.  Ins. Co.  222. 
Faircliild  v.  Liverpool  &  L.  Ins.  Co.  75. 
Farm  Ins.  Co.  v.  Mann,  19,  316. 
Farm  Ins.  Company's  Appeal,  280. 
Farmers'  Ins.  Co.  v.  Archer,  35, 158. 
V.  Ashton,  30. 
V.  Butler,  405. 
V.  Curry,   310,   304, 

3G5. 
V  Flick,  258. 
V.  Garrett,  120. 
V.  Ilarrah,  129,  130. 
V.  Meckes,  102,  11(1, 

158,  330,  353. 
V.  Mover,  253. 
V.  Smith,  184 
V.Taylor,  5,101,105, 
214,  219,  355. 
Farmers'  Fire  Ins.  Co.  v.  Mispelhorn, 

50,  203. 
Farmers'  Mutlns.Co.v.  Bair.202. 

V.  Crampton,  115. 
Farmers'  Mut.  Fire  Ins.  Co.  v.  liowen, 

311. 
Formers'  Mut.  Fire  Ins.  Co.  v.  Fogel- 

man,  365. 
Farmers'  Mut.  Fire  Ins.  Co.  v.  Qar- 

gett,  51,  126  31::. 
Farmers'  Mut.  Fire  Ins.  Co.  v.  Gray- 
bill,  24.  189,  214. 
Farmers'  Mut.  Fire  Ins.  Co.  v.  Mover, 
148. 


Farmers's  Mat.  Fire  Ins.  Co.  v.  Wcu- 

ger,  210. 
Farrell  v.  .lEtna  Fire  Ins.  Co.  105. 
Fellowes  v.  Madison  Ins.  Co.  167,  274. 
Ferebee  v.  N.  C.  Mut.  Home  Ins.  Co, 

187. 
Ferree  v.  Oxford  Fire  Ins.  Co.  44. 
Ferrer  v.  Home  Mut.  Ins.  Co.  242. 
Field  v.  Ins.  Co.  N.A.  82, 100,  229,353. 
Fire  Dept.  of  Troy  v.  Bacon,  137. 
Firemen's  Ins.  Co.  v.  Hemingway,  135, 
v.  Holt,  337. 
V.  Sholom,123,145. 
First  Nat.  Bank  of  Ballston  v.  Ins.  Co. 

of  N.  A.  376. 
First  Nat.  Bank  v.  Hartford  Fire  Ins. 

Co.  363. 
First   Presbyterian  Soc.  v.  Goodrich 

Co.  285,  388. 
Fishbeck  v.  Phoenix  Ins,  Co.  100,  101 ,. 

114. 
Fitchburg  Savings  Bank  v.  Amazon 

Ins.  Co.  174,  180,  302. 
Fitchpatrick  v.  Hawkeye  Ins.  Co.  838^ 

352. 
Fitzgerald  v.  Gore  Mut.  Fire  Ins.  Co. 

184. 
Fitzpatrick  v.  Troy  Ins.  Co.  183. 
Flaherty  v.  Gcrmauia  Ins.  Co.  4<',  173. 
Fleming  v.  Hartford  Fire  Ins  Co.  236. 
Poff le  v.  Lycoming  Mut.  Ins.  Co.  1 83. 
Foot  V.  JEina  Life  Ins.  Co.  08,  '^'>0. 
Foote  V.  Hartford  Ins.  Co.  29. 
Forest  City  Ins.  Co.  v.  School  Direc- 
tors, 198,  254. 
Forgic  V.  Royal  Ins.  Co.  44. 
Foster  v.  Van  Reed,  1 78. 
Fowle  V.  Springtield  Fire  Ins.  Co.  156, 

201,  304. 
Fowler  v.  Old  North  State  Ins.  Co.  83, 
107. 

Co.  143. 

V.  Chicago  Ice  Co. 

289,  307.  343. 
V.  Kepler,  409. 
V.  Louisville  Packet 

Co.  129. 
V.  Martin.   98,   270, 
V.  State,  3(15. 
V.  Taylor,  233. 

300,  307. 
V.  Vaughan,  309. 
Frederick  Co.  Mut.  Ins.  Co.  v.  Deford, 

318,  350. 
Frey  v.  Mut.  Fire  Ins.  Co.  53,  307. 
Priemansdorf  v.  Watertowu  Ins.  Co. 
897,  414. 


Foy  v.  .^tna  Ins. 
Franklin  Ins.  Co. 


XI 1 


TABLE  OF  OASES. 


Agricul- 


Fuller  y.  Madison  Muf.  Ins.  Co.  53, 87. 

Galveston  Ins.  Co.  v.  Heidenheimer, 

345.  333. 
Ganong  v.  .^tna  Ins.  Co.  59. 
<5an?  V.  St.  Paul  Ins.  Co.  13,  243,  348, 

349. 
GanlhiiT  v.  Canadian  Mut.  Ins.  Co.  413. 
Oarlick  v.  Miss.  Valley  Ins.  Co.  199. 
Oaskin  v.  Phoenix  Ins.  Co.  173. 
Gates  V,  Penn  Fire  Ins.  Co.  14,  96. 
Giiult  V.  American  Cent.  Ins.  Co.  280, 

283. 
Gautliier  v.  Waterloo  Ins.  Co.  325. 
Gaytos  v,  Hibbard,  184. 
Gc,  V.  Ins.  Co.  230. 
Georgia  Home  Ins.  Co.  v.  .Tones,  153. 
V.  Kincier,  15, 
38,  101,  146, 
163,  35«. 
Geraldi  v.  Provincial  Ins.  Co.  403. 
German  v.  Hand-in  Hand  Ins.  Co.  382. 
German  Ins.  Co.  v.  Ward.  253,  263. 
German  American  Ins.  Co.  v.  Davis, 

270, 373, 
German  American  Bank  v. 

tnral  Ins.  Co.  393. 
Germania  Fire  Ina.  Co.  v.  Cassteel,  83, 

110,  330, 
2'53. 
V.  Curran,  93, 
128,  368, 
385, 
T.  Circuit  Jud. 
48. 
Germania  Ins.  Co  v.  McKee,  102. 

V.  Sherlock,  63,108. 
Germond  v.  Home  Ins.  Co.  35, 
Gerrish  v.  Ins.  Co.  333. 
Oershauser  v.  N.  B.  &  M.  Ins.  Co.  100, 

134,  268.  334. 
Gettius  V.  Scuddor,  139. 
Gf'ttworth  V.  Teutonia  Ins.  Co,  83. 
Gibbs  V.  Continental  Ins.  Co.  43,  133 
331. 
V.  Queen  Ins.  Co.  131. 
Giffard  v.  Queen  Ins.  Co,  69. 
Gilbert  v.  Post,  165. 
Gilchrist  v.  Gore  Mut.  Ina.  Co.  219. 
Gilligan  v.  Commercial  Ina.  Co.  391 

393,410,414, 
Girard  Fire  Ins.  Co,  v.  Field,  138, 
V,  Hcbard,  33. 
Glade  v.  Germania  Fire  Ins.  Co.  90 
Glass  V.  Walker,  168. 
Go.idard  v.  Monitor  Ins.  Co.  85. 
Godfrey  v.  Maconiber,  188. 


Goldsmith  v.  Gore  Diet.  Fire  Ins.  Co. 
261. 
▼.  Home  Ins.  Co.  185. 
Goodwin  v.  Lancashire  Fire  Ina.  Co. 

64.  355. 
Gordon  v.  Ware  Savings  Bank,  175. 

V.  Wright,  140,  386. 
Gore  Dist.  Mut.  Fire  Ins.  Co.  v.  Samo, 

93. 
Gorman  v.  Hand-in  Hand  Ins.  Co.  41, 

393. 
Gorton  v.  Dodge  Co.  Mut.  Ins.  Co.l97. 
Gouinlock  v.  Manuf.  Ins.  Co.  375. 
Gould  V.  Holland  Purchase  Ins.  Co.  89. 
Grace  v.  Am.  Central  Ins,  Co,  19,  57,  ' 
Grady  v.  American  Central  Ins,  Co.  9. 
Graham  v.  Firemen's  Ins,  Co.  253,  267, 
398,  414. 
V.  Phoenix  Ins.  Co.  365. 
Gram  v.  Heaver  &  Toronto  Fire  Ins, 

Co.  189. 
Grant  v.  Reliance  Fire  Ins.  Co,  58. 
Greeley  v.  Iowa  State  Ins.  Co,  807, 
Greene  v.  Equitable  Fire  Ins.  Co.  223, 
V.  Homestead  Fire  Ins.  Co.  34, 

90,  350. 
V.  Lycoming  Fire  Ins.  Co,  99. 
V.  Republic  Ins  Co.  47,  888. 
Grecnwald  v.  Ins.  Co,  119. 
Griswold  v.  American  Cent.  Ins.  Co, 

44,  145.  173. 
Grubb  V,  Ins.  Co.  103, 
Guggisberg  v.  Waterloo  Mut.  Ins.  Co. 

203. 
Gulf  City  Ins.  Co.  v.  Stephens,  lOli. 

Iladley  v.  Ins.  Co.  100,  170,  385. 
Haf  penny  v.  People's  Fire  Ins.  Co.206. 
Haganiiin  v,  Allemania  Ins,  Co.  389, 

393.  403. 
Ilaight  V.  Kremer,  94. 
Haines  v.  Republic  Fire  Ins.  Co.  105. 
Haley  V.  Manulacturers  Ins.  Co,  177. 
Hall  V. Dorchester  Mut.  Fire  Ins.  Co.44, 

v.  Ins.  Co.  of  N.  A.  307. 
Hnmhieton  v.  Home  Ins.  Co.  7. 
Hiimmcl  V.  Queen  Ins.  Co,  370,  887. 
Hand  v.  Williamsburg  City  Fire  Ins. 

Co.  76,  154, 
Hanover  Ins.  Co,  v.  Manuason,185,38l. 
Hanson  v.  Milwaukee  M,  Ins,  Co.  112, 
Harding  v.  Town  of  Townslitnd,  81, 
Harp  V,  Grangers'  Mut,  Ins,  Co.  73, 
Harriman  v,  Quoon  Ins.  Co.  84,  101, 

253,  327. 
Harrington  v,  Fitchburg  Ins.  Co.  80. 

180,  884,  842. 


TABLB  OF  OASES. 


xiii 


Pi  re  Ins.  Co. 

Jo.  185. 
rire  Ins.  Co. 

3ank,  175. 

30. 

Co.  V.  Samo, 

Ins.  Co.  41, 

Ins.  Co.l97, 

:o.  875. 

e  Ins.  Co.  89. 

Co.  19,  57. 
il  Ins.  Co.  9. 
Co.  253,  267, 

0.  265. 

to  Fire  Ins. 

1.  Co.  58. 
Co.  207. 
ns.  Co.  223. 
Ins.  Co.  34, 

as.  Co.  99. 
.  47,  388. 

int.  Ins.  Co, 


Tut.  Ins.  Co. 

liens,  lOG. 

0,  385. 
Ins.  Co.206. 
IB.  Cu.  389, 


^ns.  Co.  105. 
w.  Co.  177. 
u  Ins.  Co.44. 
07. 
:!o.  7. 
27n,  387. 
ty  Piro  Ins. 

)on,125,88l. 
na.  Co.  112, 
nslicnd.  81. 
8.  Co.  72. 
Jo.  84,  101, 

Ins.  Co.  80, 


Harris  v.  Gaspee  Fire  Ins.  Co.  173. 

V.  Royal  Canadian  Ins.  Co.  294. 
Hart  V.  Lycoming  Fire  Ins.  Co.  242. 
Hartford  Fire  Ins.  Co.  v.  Abbott,  385. 
V.  Alcott,  179. 
V.    Davenport, 

96,  386. 
V.  Doyle,  130. 
Hartford  Ins.  Co.  v.Farrish,  15,  233, 
82U,  356. 
V.  Gray,  38. 
V.  Owen,  129. 
V.  Pennell.  304. 
V.  Reynolds,  15, 56. 
V.Smith,  2,  332,364. 
V.  State,  130. 
V.Webster,  343, 347. 
V.  Wilcox,  4,  230. 
Harvey  v.  Cherry,  157. 
Haslctt  V.  Allegheny  Ins.  Co.  238. 
Hastings  Mut.  Fire  Ins.  Co.  v.  Shan- 
non, 38. 
Hastings  v.  Westchester  Fire  Ins.  Co. 

83,  179. 
Hawkc  V.  Niagara  Dist.  Ins.  Co.  234, 

248. 
Hay  V.  Star  Fire  Ins.  Co.  172,  270, 287. 
Hays  V.  Lycoming  Fire  Ins.  Co.  213. 
Hay  ward  v.  Liv,,  L.  «&G.  Ins.  Co.  110. 

V.  National  Ins.  Co.  101. 
Bazzard  v.  Canada  Agricultural  Ins. 

Co.  45,  88.  222. 
Heald  v.  Builders'  Ins.  Co.  152. 
Ilearn  v.  New  England  Mut.  Ins.  Co. 

820. 
Heath  v.  Springfield  FireTns.  Co.  100. 
llebi-l  v.  Amazon  Ins.  Co.  132. 
Hebcrnia  Mut.  Fire  Ins.  Co.  v.  Meyer, 
349.  ^    ' 

Heilmnn  v.  Westchester  Fire  Ins.  Co. 

179. 
Hclbiner  v.  Svea  Ins.  Co.  127. 
Heller  v.  Crawford,  142. 
Hendrickson  v.  Queen  Ins.  Co.  03,218, 

343. 
Hcnning  v.  U.  S.  Ins.  Co.  280. 
Herbert  v.  Mercantile  Fire  Ins.  Co.368. 
Herkins  v.  Provincial  Ins.  Co.  62, 270. 
Herman  v.  Adriatic  Ins.  Co.  840. 

v.  Xlercliants  Ins.  Co.  08, 148, 
889. 
Hews  v.  Atlus  Ins.  Co.  883. 
Hibernia  Ins.  Co.  v.  O'Conner,  7,  80, 

214,  252. 
Hick.s  V.  Empire  Ins.  Co  106,  262. 
Hill  V.  Equitable  Ins.  Co.  883. 
V.  Uibernia  Ins.  Co.  87. 


Hill  V.  Home  InB.  Co.  42,  118. 

V.  Ins.  Co.  831. 
Hingston  v.  ^tna  Ip  .  Co.  10. 
Hinman  v.  Hartford  Fire  Ins.  Co.  67, 

91,  808,  857. 
Hoffecker  v.  N.  C.  M.  Ins.  Co.  52. 
Hoffman  v.  Banks,  185. 
Holbrook  v.  St.  Paul  Ins.  Co.  157,164, 

292,  293. 
Hollingsworth  v.  Oermania  Ins.  Co. 

55. 
Hollister  v.  Quincy  Ins.  Co.  195. 
Holmes  v.  Drew,  92. 
Home  Dist.  Ins.  Co.  v.  Thompson, 271. 
Home  Ins.  Co.  v.    Baltimore   Ware- 
house Co.  75, 107, 140. 

V.  Curtis,  65,  71,  247. 

V.Davis,  1.30,131,404. 

V.  Duke,  61,  241,  405. 

v.  Oaddis,  403,  410. 

V.  Goldsmith,  135. 

V.  Heck,  54,  307. 

V.  Lindsey,  27, 241. 

V.  Morse,  284. 

V.Myers,  84, 172,216, 
276. 

v.  Penn.R.R.Co.lO«, 
303. 

v.  Tighe,  59. 
Home  Ins.  Co.  259. 
Home  Mut.  Ins.  Co,  v. 


V. 


Garfield,  100, 
271. 

Hauslein,   23, 
43,  159. 
Fire  Ins.  Co. 


Hotchkiss  V.  Germania 

51,  .347, 
Hough  V.  People's  Ins.  Co.  66, 75,139, 

140,  878. 
Houghtor  V.  Watertown  Fire  Ins.  Co, 

384. 
Ilovey  V.  Home  Ins.  Co.  280. 
How  V.Union  Mut.  Life  Ins.Co.20,353. 
Howard  v.  Hinckley  Co.  192. 
Howard  Ins.  Co.  v.  Scribner,  75. 
Hubbard  v.  Hartford  Fire  Ins.  Co.  69, 

93,218,230,300. 
Hnchberger  v.  Home  Ins.  Co.  124,239. 
V.  Merchants  Ins.  Co.  61, 
124. 
Hughes  V.  City  of  Cairo,  136. 

V.  Vinland  Ins.  Co.  208. 
Hummel's  App.  194. 
Humphrey  v.  Hartford  Fire  Ins.  Co. 
82,  112,  174,  235,  287, 
258,  827. 
V.  City  of  Noifolk,  180. 
Huntley  t.  Home  Ins.  Co.  248. 


XIV 


TABLE  OF  OASBS. 


i 


Hurd  V,  St.  Paul  Ins,  Co,  269. 
Hutchinson  v.  Niagara  Dist.  Ins.  Co. 
258,  882. 

IJc  V.  Phoenix  Ins.  Co.  168,  343. 

III.  Mut.  Fire  Ins.  Co.  v.  Andes  Ins. 

Co.  82. 
III.  Mut.  Ins.  Co.  V.  Archdeacon,  348, 

350. 
Illinois  Firo  Ins.  Co.  v.  Stanton,  4,  93, 

174,  184.  241. 
Imperial  Ins.  Co.  v.  Express  Co.  64. 
M^  V.  Murray,  66, 

Imperial  Fire  Ins,  Co,v,  Gunning,  275, 
T,  Murray,  152, 

357, 
V.  Sherman,  101. 
Imperial  Marine  Ins.  Co.  v.  Fire  Ins. 

Co.  73. 
In  re  Reis,  162. 
Insurance  Company  t.  Boon,  292. 

V.  C.  D.,  Jr.  302. 

V,  Chase,  201,302. 

V.  Colt,  7. 

V.  Dlggs,  50,  155. 

V.  Haven,  310. 

V.  Holt,  224. 

V.  La  Croix,  171, 

348. 
V.  Lewis,  86,   97, 

276,  350. 
V.  Long,  336. 
V.  Lyons,  1.5,  219. 
V.  Moore,  193. 
V.  McCain,  14,  15. 
V.  McGookey,   17, 
215,  244. 
Norton,  348. 
O'Malley,  118. 
Stinson,  158. 
The  Common- 
wealth, 805. 
V,  Thompson.  155. 
Ins.  Co.  of  N.  A.  V.  Bninbridge,  263. 
V.  Comm.  85. 
V.  Hope,  271. 
V.  Ziiinger,  257. 
International  Life  Ins.  Co.  v.  Franklin 

Fire  Ins,  Co.  56. 
Iron  Co.  V.  Maine  Mut.  Ins.  Co  199. 
Irwin  V.  National  Ins.  Co.  54. 
Israel  v.  Teutonia  Ins.  Co,  124. 

Jackson  v.  Van  Slykc,  186. 
James  v.  Lyroming  Ins.  Co.  289,  855. 
James  River  Ins.  Co  v.  Merritt,  4, 879. 
Jameson  ▼.  Royal  Ins.  Co.  213. 


V. 
V. 
V. 
V. 


Jecks  V.  St.  Louis  F.  &  M.  Inft.  Oo. 

32,  47. 
Jenkins  t.  Armour,  194. 
Johnson  v.  Brewer's  Fire  Ins,  Co,  285, 
V,  Campbell,  140. 
V.  Canada  Farmers'  Ins.  Co. 

30,  108,  109. 
V.  Continental  Lh.  Co.  273. 
V.  Humboldt  Ins.  Co.  173. 
V.  N.  B.  and  M.  Ins.  Co.  79. 
V.  Phojnix  Ins.  Co.  44,  61. 
V.  Provincial  Ins.  Co.  13. 
V.  Union  Ins.  Co.   142. 
Joliffe  V.  Madison  Mut.  Ins.  Co.  193, 

197. 
Jones  V.  iEtna  Ins.  Co.  250. 

V.  Firemen's  Fund  Ins.  Co.  144. 
V.  Mechanics'  Fire  Ins.  Co.  104, 

124,  252. 
V.  Taylor,  128. 

Kaler  v.  Builders'  Mut.  Fire  Ins.  Co. 

107. 
Kanndny  v.  Gore  Dist.   Ins,  Co.  43, 

181.  224. 
Kline  v.  Ilibcrnia  Ins.  Co,  51, 
Kansas  Ins.  Co,  v.  Berry.  ;5()7, 
V,  Craft,  206, 
Keeney  v.  Home  Ins,  Co.  39,  50,  260, 

326, 
Kelly  V,  Hochelnga  Mut.  Fire  Ins.  Co, 
66,  207. 
V.  Home  Ins,  Co.  329. 
V.  Liv,.  L  &  G,  Ins.  Co,  151,218, 
Kendall  v,  Holland  Purchase  Ins.  Co, 

214, 
Ken!  edy  v.  Agricultural  Ins,  Co.  88. 

V.  Ins.  Co,  320,  360. 
Kensington  Nat.  Bank  v,  Yerkes,  89, 

262. 
Kirr  V.  British  America  Assur.  Co.60. 
V.  Hastings  Mut.  Ins.  Co.  46,365. 
King  V.  Enterprise  Ins.  Co.  55,  820. 
Kingsbury  v.  Buckncr,  159. 
Kline  v.  Queen  Ins.  Co.  155. 
Knickerbocker  Ins.  Co.  v.  Gould,  82, 

221,  357. 
V,    McGinnis, 
315. 
Knight  V.  Eureka  Fire  Ins.   Co.  164, 

220,  385. 
Knox  V,  Lycoming  Ins,  (^o.  21.  277, 
Kronk  v.  Birmingham  Ins.  Co,  314, 

Lafiirgo  V,  Liv.,  L.  &  G,  Ins.  Co.  61. 

255. 
Lamar  Ins.  Co.  v.  Moore,  807. 


TABLE  OF  CASES. 


%y 


a.  Ina.  Oo. 


Iu8.  Co.  285. 

crs'  Ins.  Co. 

IIS.  Co.  273. 
1.  Co.  173. 
Ins.  Co.  79. 
:(>.  44,  61. 
•  Co.  13. 
.  142. 
ns.  Co.  193, 

50. 

Ins.  Co.  144. 

Ins.  Co.  104, 


riie  Ids.  Co. 
Ins.  Co.  43, 

51. 
307. 
}06. 

39,  50,  260, 

Fire  Ins.  Co. 

!9. 

Co.  151,218. 

Iiaao  Ins.  Co. 

[ns.  Co.  88. 
260. 
Yerkes,  89, 

Usur.  Co. 60, 
I.  Co.  46,365. 
o.  55,  320, 
•9. 

r)5. 

Gould,  83, 
331,357. 

.  McGinnis, 
215, 

18,   Co.  164, 

o.  21,  277. 
s.  Co,  314. 

Ina.  Co.  61, 

207, 


Lamb  v.  Bowser,  132,  133,  203,  240, 

V,  Lamb,  130,  197. 
Lancaster  Fire  Ins,  Co.  v.  Lenheira, 

301. 
Landers  v.  Watertown  Ins.  Co.  400. 
Landis  v.  Home  Mut.  Ins.  Co.  191, 192. 
Langdon  v.  Minnesota  Mut.  Ins.  Co. 

28,  346. 
Langworthy  v.  Oswego  Ins.  Co.  295. 
Lapeer  Ins.  Assoc,  v.  Doyle,  67. 
Lasher  v.  Northwestern  Nat.  ins.  Co. 
43,  99,  316,  386. 
V.  St.  Joseph  F.  &  M.  Ins,  Co. 
409. 
Liitoix  V.  Germania  Ins.  Co.  10,  247. 
Lattonuis  v.  Farmers'  Mut.  Ins.  Co.  6, 

37,  144,  189,  239,  320. 
Law  V.  Hand-in-IIand  Ins.  Co.  406, 

410. 
Lehigh  Valley  Ins.  Co.  v.  Fuller,  138. 
Leland  v.  Kirby,  177. 
Lengsfield  v.  Richardson,  235. 
Leonard  v.  Lebanon  Mut,  Ins.  Co.  204. 
Levy  V.  Peabody  Ins.  Co.  109,  348. 
Lewis  V.  Atlas  Mut.  Life  ins.  Co.  13, 13. 
Lias  V.  Roger  Williams  Ins.  Co.  174. 
Liblong  V.  Kansas  Fire  Ins.  Co.  133. 
Lindley  v.  Union  Ins.  Co.  233. 
Lindsay  v.   Lancashire  Fire  In?.  Co. 

3.)6. 
Lingley  v.  Queen  Ins.  Co.  150. 
Little  V.  Phoenix  Ins.  Co.  65,  124,  155, 

171,348. 
Xiiv.,  L  &  Q.  Ins.  Co.  v.  Creighton,40, 

306. 
V.  McGuiro,  100, 

310. 
V.  Verdier,  80. 
V.  Wyld.  333. 
Livingston  v.  Western  Ins.  Co.  173. 
Lockwood  V.  Middlesex  Mnt,  Ins.  Co. 
34,  54,  63,  89,  317,  245,  388,  318, 
339, 
Lohnis  V,  Ins,  Co.  of  N.  A.  1 8. 
Longley  v.  Northern  Ins.  Co,  120. 
Loncjueville  v.  West.  Asa.  Co,  291. 
Looney  v,  Looney,  161. 
Lovewell  v.  Westchester  Ins,  Co,  383. 
Loy  V.  Home  Ina.  Co.  30. 
Luce  V,  Dorchester  Mut.  Ins.  Co.  143. 

V.  Springfield  Ins.  Co.  1,  341. 
Ludwig  v,  .Icrsey  City  Ins.  Co,  66, 93, 
Luling  V.  Atlantic  Mnt,  Ins,  Co.  186. 
Lungstrass  v.  German  Ins.  Co.  70. 
Lycoming  Ins,  Co.  v.  Barringer,  85, 

101,  308. 
V.  Bedford,  314. 


Lycoming  Ins.  Co.  ▼.  Dunmore,  253. 
V.  Haven,  311. 
V.  Jackson,  37,  87, 

100,  108. 
V.  Bought,  399. 
V.      Rubin.      10r>, 

238. 
V.  Schwenk,  394, 
T.Ward,  16, 17. 
V.  Woodworth,  13, 
301. 
Lycoming  Mut,  Ins,  Co.  t.  Stocklomn, 

74,  183. 
Lyman  v.  Bonney,  149. 
Lyon  v,  Stadacona  Ins,  Co.  29S,  315, 

369, 
Lyons  v.  Globe  Mut,  Fire  Ins.  Co.  303, 
203. 
V,  Manufacturers'  Ins.  Co.  332. 
V,  Providence  Ins.  Co.  406. 
y,  Washington  Ins.  Co.  21J6. 


Machctte  v.  Hodges,  4. 

Maher  v.  Hibcrnia  Ins.  Co.  95,   125, 

3t3,  259,  374,  375. 
Maine  Ins.  Co.  v.  Farrar,  198. 

v.  Pickering,  306, 
V.  Slock  well,  198. 
Maine  Mnt.  Ins,  Co.  v.  Blunt,  193. 
Mamlok  v.  Franklin,  358. 
Manger  v.  Holyoke,  75. 
Manhattan  Ins.  Co.  v.  Bjirker,  307. 

v.  Weill,  310. 
Manhattan  Fire  Ins.  Co.  v.  Neill,  101. 
Manlove  v.  Burger,  185. 
V.  Naylor,  185. 
Mansbach   v.    Metropolitan  liifo  Ins. 

Co.  57. 
Manufts.  Ins.  Co.  v.  Kunkler,  147. 
Maritime  Bank  v.  Guardian  Ins.  Co. 

387. 
Mark  v.  National  Fire  Ins.  Co.  43, 1 16, 

395,  818. 
Marland  v.  Royal  Ins.  Co.  346,  844. 
Marsh  v.  Northwestern  Nut.  Ins.  Co, 

54. 
Marshall  v.  Times  Fire  Ins.  Co.  373. 
Martin  v.  Franklin  Fire  Ins.  Co.  45, 
115,  385. 
V.  Mutual  Fire  Ins.  Co.  53,343, 
Martz  V,  Detroit  Ins.  Co.  138. 
Marvin  v,  Stadacona  Ins.  Co.  56. 
Marx  v.  National  Ins.  Co.  70. 
Maryland  Fire   Ins.    Co.  v.  Qusdorf, 

291.  347. 
Mason  v.  Andes  Ins.  Co,  60. 


XVI 


TABLE  OF  CASBS. 


Masoa  v.  Citizens'  P:re  Ins.  Co.  249, 
253. 
V.  Hartford  Fire  Ins.  Co.  340. 
Massasoit  Steam  Mills  v.  Western  As- 

sur.  Co.  72. 
Masse  v.  Hochclaga  Mut.  Ins.  Co.  207, 

263. 
Mathews  v.  Queen  City  Ins.  Co.  151, 

323. 
Matson  v.  Farna  Buildings  Ins.  Co.  167. 
Matterof  Moore,  177. 
Mayor  of  N.  Y.  v.  Brooklyn  Fire  Ins. 
Co.  354. 
\.  Exchange  Fire  Ins. 
Co.  102. 
Mead  v.  Westchester  Fire  Ins.  Co.  275, 
Meare  v.  Humboldt  Ins.  Co.  301. 
Mechanics'  Building  &  Savings  Socie- 
ty V.  Gore  Dist.  Mut.  Fire  Ins. 

Co.  201. 
Mechanics'  Society  v.  Gore  Dist.  Ins. 

Co.  32,  180. 
Mechler  v.  Phoenix  Ins.  Co.  154,  286. 
Medina  v.  Builders'  Mut.  Fire  Ins.  Co. 

86,  382. 
Mentz  V.  Armenia  Fire  Ins.  Co.  40. 

V.  Lancaster  Fire  Ins.  Co.  345. 
Mercantile  Ins.  Co.  v.  llolthorne,  258. 
Merchants  &  Miners'  Transp.  Co.  v. 

Assoc.  Firemen's  Ins.  Co.  293. 
Merchants'  Mut.  Ins.  Co.  v.  Blandin, 

128. 
Merrill  v.  Agricultural  Ins.  Co.  88,  92, 

368. 
Mers  V.  Franklin  Ins.  Co.  101,811,315. 
Mersereau  v.  Phoenix  Mut.  Life  Ins. 

Co.  11. 
Mershon  v.  National  Ins.  Co.  43,  246. 
Merwin  v.  Star  Fire  Ins.  Co.  174,  362. 
Meyers  v.  Germania  Ins.  Co.  343,  347. 
Miagham  v.  Hartford  Fire  Ins.  Co.  14, 

102, 116,  267,  275,  341. 
Miami  Valley  Ins.  Co.  v.  Stanhope, 

119.  ' 

Michigan  Cent.  R.  R,  v.  Andes  Ins 

Co.  285. 
Michigan  State  Ins.  Co.  v.  Lewis,  25. 

100,  345. 
Mickey  v.  Burlington  Ins.  Co.  168, 

213, 355.  ' 

Mickler  v.  Phoenix  Ins.  Co.  846. 
Midland  Ins.  Co.  v.  Smith,  61. 
Miller  v.  Aldrich,  176. 

V.  Alliance  Ins.  Co,  280,  319. 

401,  404,  409. 
V.  Amazon  In?.  Co.  819. 
T.  Ins.  Co.  of  N.  A.  821. 


Miller  t.  Oswego  &  Onondaga  Ins. 

Co  327 
Mills  v.*  Farmers'  Ins.  Co.  103,291,379, 

V.  Ins.  Co.  118. 
Millville  Ins.  Co.  v.  Collerd,  9,  71. 
Millville  Mut.  Fire  Ins.  Co.  v.  Wyl- 

gus,  313. 
Miner  v.  Judson,  26, 191. 
Minzesheimer  v.  Continental  Ina.  Co. 

94. 
Mispelhorn  v.  Farmers'  Fire  Ins.  Co. 

50,  114. 
Mix  V.  Andes,  155,  172. 
Mobile  Fire  Dep.  Ins.  Co.  v.  Miller,  364. 
Monndnock  R.  R.  Co.  t.  Manufactu- 
rers'T  ..  Co.  379. 
Monitor  Ins.  Co.  v.  Young,  7. 
Monitor  Mut.  Ins.  Co.  v.  Buffum,  52,. 

192. 
Monroe  Co.  Mut.  Ins.  Co.  v.  Robinson, 

311. 
Monroe  v.  Southern  Mut  Ins.  Co.  157. 
Montrgue  v.  Boston  and  Albany  R. 

R.  180. 
Moore  v.  Virginia  Fire  Ins.  Co.  53,  92. 
Morrow  v.  Waterloo  Co.  Mut.  Fire  Ins. 

Co.  53. 
Morse  v.  City  of  St.  Paul,  131. 

V.  Buffalo  Fire  Ins.  Co.  66, 160. 
Moulthrop  V.  Ins.  Co.  210. 
Moyes  v.  Mechanical  Mut.  Ins.  Co.  136. 
Mueller  v.  Southside  Fire  Ins.  Co.  67, 

349. 
Muhlcmnn  v.  National  'ns.  Co.104,187- 


Mullany  v.  Na'. 
Mullen  V.  Doi 

Co.  19t 
Mut.  Assur.  Sr . 
Mut.  Fire  Ini. 


>r  361. 
Mut.  Fire 


Ins. 


1  /O, 


)It,  209. 

Andes  Ins.  Co. 
278. 
V.  Coatsville  Shoe 
Factory,      146, 
160. 
L.  &  G  Ins.  Co.  235. 
McArthur  v.  Smith,  202. 
McBride  v.  Gore  Dist.  Mut.  Ins.   Co. 
217,  306. 
V.  Republic  Fire  Ins.  Co.  97, 
252,  854. 
McCabe  v.  Dutchess    Co.  Mut.    Ins. 
Co.  17. 
V.  Farm  Buildings  Fire  Ins. 
Co.  111. 
McCann  t.  JEtna  Ins.  Co.  232. 

V.  Waterloo  County  Fire  Ina. 
Co.  106. 
McCIuer  v.  Girard  Ins  Co.  291. 


Myers  v.  Liv., 


TABLE  OF  CASES. 


XVI I 


londaga  Ins. 

103,891,379. 

rd,  9,  71. 
Co.  V.  Wyl- 

intal  Ins.  Co. 
'ire  Ins.  Co. 


v^.  Miller,  364. 
,  Manufactu- 

g.7. 
Buffum,  52^ 

V.  Robinson. 

Ins.  Co.  157. 
1  Albany  R. 

8.  Co.  53,  92. 
itut.  Fire  lus. 

,  131. 

,  Co.  66, 166. 

). 

Ins.  Co.  136. 

Ins.  Co.  67, 

.Co.  104, 187. 

tOl. 

it.  Fire  Ins. 

209. 

des  Ins.  Co. 

itsville  Shoe 
itory,      146, 

'.  Co.  235. 

ut.  Ins.  Co. 

Ins.  Co.  97. 

Mut.    Ins. 

gs  Fire  Ins. 

232. 
ity  Fire  Ins. 

1. 291. 


McClure  v.   Mississippi    Valley    Ins. 
Co.  13. 
V.  Wiitertown  Fire  Ins.  Co. 
33.J. 
McClunkey  v.  Providence  Jus.  Co.  40, 

103. 
"I^Cmw  V.  Old  North  State.  200. 
McCrca  v.  Waterloo  Mut.  Ins.  Co.  221. 
McCulIoch  V.  Norwood,  241,  358. 

V.  Gore  Dist.  Mut.  Fire  Ins. 
Co.  320. 
McCutcheon  v.  Kivers,  17. 
McDennott  v.  Lycoming  Fire  Ins.  Co. 

2G3. 
McFarhtnd  v.  Mtna  Ins.  Co.  162. 

V.  Peabody  Ins.  Co.  64,94, 
169,  380. 
McGuj^an  v.  Manufacturers  and  Mer- 
chants' Ins.  Co,  393,  399. 
McTntire  v.  Plaisted,  168. 
Mcintosh  V.  Ontario  Bank,  159. 
Mclntyre  v.  National  lua.  Co.  54. 
McKenzie  v.  Fire  Ins.  Co.  !i4,  186. 
McKisslck  V.  Mdl  Owners'  Mut.  Ins. 

Co.  30. 
McLiichian  v.  yEtna  Ins.  Co.  (19,  217. 
McLeod  V.  Citizens'  Ins.  Co.  120,  269, 

312. 
McMiiuus  V.  ^]tna  Ins.  Co.  251. 
McMaster  v.  Ins.  Co.  of  N.  A.  94,  104. 
McQueen  v.  Plicenix  Mut.  Ins.  Co.  393, 

414. 
McRossie  v.  Provincial  Ins.  Co.  60. 

National  Bank  v.  Ins.  Co.  303. 

Naughter  v.  Ottawa  Ins.  Co.  98,  101, 
146. 

Nedrow  v.  Farmers'  Tns.  Co.  201,  325. 

N.  B.  &  Mcrcjintile  Ins.  Co.  v.  Liv.,  L. 
&  «.  Ins.  Cn.  79. 

Newhail  v.  Atlantic  Fire  Tns.  Co.  284. 

Newman  v.  Home  Ins.  Co.  175. 

Newton  v.  Gore   Dlst.  Mut.  Fire  Ins. 
Co.  125. 

Niaijara  Ins.  Co.  v.  Hodecker,  133. 

Niairara  Dist.  Mut.  Ins.  Co.  v.  Gortlou, 
'  398. 

Norman  v.  Ins.  Co.  of  N.  A.  10. 

North  Am.  Ins.  Co.  v.  Whipple,  274. 

N.  A.  Fire  Ins.  Co,  v.  Zainijer,  328. 

Northamptoii  Mut.  Ins.  Co.  v.  Stewart, 

2(t3. 
v.    Tuttle, 
240. 

North  British  Ins.  Co.  v.  Moffatt,  139. 

North  Penn.  Fire  Ins.  Co.  v.  Susque- 
hanna Mut.  Fire  Ins.  Co.  281. 

Vol.  II.— B 


Northrop  v.  Germania  Fire  Tns.  Co.  18. 
Northwestern  Mut.  Life  Ins.  Co.   v. 
Germania  Ins.  Co.  178,  299,  352. 
Norwood  V.  Resolute  Ins.  Co.  278. 
Noyes  v.  Ilartford  Ins.  Co.  160. 

Oakes  v.  Manufacturers'  Ins.  Co.  35. 
Of,'<k'n  V.  East  River  Ins.  Co.  74,  75. 
Osborne  v.  Shawmut  Ins.  Co.  135. 
Osjiood  V.  Toole,  198. 
Owens  v.IIoUand  Purchase  Ins.Co.358. 
Oxford  Buildg.  Soc.  v.  Waterloo,  203. 
O'Brien  v.  Commercial  Fire  Ins.  Co. 
49,  257. 
V.  Phcenix  Ins.  Co.  216,  264. 
O'Connor  v.  Commercial  Union  Ins. 
Co.  62. 
V.  Hartford  Fire  Ins.  Co. 
104,  251,  252. 
O'Neill  V.  Ottawa  Agricultural  Ins. 
Co.  389,  408,  412. 

Pacaud  v.  Queen  Ins.  Co.  37,  229. 
Paine  v.  Agricultural  Ins.  Co.  330. 
Palmer  v.  St  Paul  F.  Ins.  Co.  202,  349. 
Pidochc  V.  Pacific  Ins.  Co.  128. 
Paqu(!t  V.  Citizens'  Ins.  Co.  32. 
T'arker  v.  Agricultural  Mui;.  Ins.Co.  88. 
V.  Amazon  Ins.  Co.  97,  124, 253. 
V.Arctic  Fire  Ins.  Co.  286. 
v.  Smith  Charities,  181. 
Parnielce  v.  Iloit'man  Fire  Ins.  Co.  254. 
Parsons  v.  Citizens'  Tns.  Co.  223,  229, 
269. 
V.  Queen  Ins.  Co.  38,236,389, 

39ii,  400,  402,  408. 
V.  Victoria  Mut.  Ins.  Co,  399. 
Partridge  v.  Commercial  Fire  Ins.  Co. 

19,  113. 
Patterson  v.  Triumph  Ins.  Co.  40,  252, 

385. 
Pearson   v.   Commercial   Union   Ins. 

Co.  291. 
Peehner  v.  I'ha'nix  Tns.  Co.  95,  101. 
!Vck  V.  Pha'nix  Mnt.  Ins  Co.  396. 
Pel  ton  V.  Westchester  Fire  Ins.  Co. 

314. 
Pennchaker    v.    Tomlinson,    20,  45, 

129,  130. 
Pennell  v.  Chandler,  170. 

V.  Lamar  Ins.  Co.  256. 
Penn.  C-nt.  Ins.  Co.  v.  ICenloy,  193. 
Penn.  Fire  Ins.  Co.  v.  Kittle,  HI,  223, 

224. 
People  V.  Com.  of  Ins.  128. 

v.  Empire  Fire  Ins.  Co.  134. 


XVlll 


TABLE  OF  CASES. 


People  V.  Liv.  Lond.  &  6.  Ins,  Co,  64, 

152,  254, 
People's  Fire  Iiib,  Co.  v.  Hart,  241. 

V.    Hartshorne, 
205,  210. 
V.  Kuhn,  325. 
V.  Paddon,  21, 

238. 
V.  Straehle.ni, 
156,  253,  272,  304. 
Peppit  V.  N.  B.  &  M.  Ins.  Co.  210,  250. 
Perkins  v.  Equitable  Ins.  Co.  87,  102. 
Perry  v.  Lorillard  Fire  Ins.  Co.  25. 
V.  Niagara  Dist.Mut.  Ins  Co.  49. 
V.  Plioenix  Ins.  Co.  241,  245, 
404,  405. 
Pettigrew  v.  Grand  River  Ins.  Co.  155. 
Phil.  Trust  Ins.  Co.  v.  Fame,  277, 
Phillips  V.  Perry  County  Ins,  Co,  74, 
Phoenix  Ins.  Co.  v.  Duff,  62. 

V.  Floyd,  181. 
V.  Perkey,  62,  244. 
V.  Mich,  Southern  R. 

R.  Co.  220. 
V.  Slaughter,  296. 
V.  Stevenson,249,351. 
V.  Tucker,  101,  253, 

337. 
V.  Underwood,  169. 
Pierce  v.  Cohasset  Mut,  Fire  Ins.  Co. 

366. 
Pindar  v.  Resolute  Fire  Ins.  Co.  52, 

103, 296. 
Pitney  v.  Glen's  Falls  Ins.  Co.  9,  27, 
101, 161,  162,  221.  268,  286,  386, 
387, 
Planters'  Ins.  Co.  v.  Comfort,  76,  191, 
253. 
V.  Myers,  5,  17, 229, 

361. 
V.  Ray.  248,  287. 
V.  Sorrels,   97,   143, 
354. 
Planters'  Mut.  Ins.  Co.  v.  Deford,  100, 

124,  219,  252,  356,  379. 
Planters'  Mut.   Ins.  Co.  v.  Engle,  53, 

112,  141,  253,  383, 384. 
Piatt  V.  Minnesota  Farmers'  Mut.  Ins. 

Co.  91,  110. 
Plimpton  V.  Farmers'  Mut.  Ins.  Co.l65. 
Poorv.  Hudson  Ins.  Co.  59,  101,  340. 

V.  IIun\boldt  Ins,  Co.  367. 
Porter  v.  ^tna  Ins,  Co,  83,  310. 
Portsmouth  Ins.  Co.  v.  Reynolds,  50, 

84,  253,  294,  387. 
Pottsville  Mut.  Fire.  Ins.  Co.  v.  Ko- 
ran, 147,  370,  394,  396,  411. 


Pottsville  Mut.  Fire  Ins. Co,  v.  Meeker, 

270, 
Potter  V,  Monmouth  Ins,  Co.  1, 
Power  V,  City  Fire  Ins.  Co.  268, 
Pratt  V,  N,  Y,  Cent,  Ins,  Co,  52,  256, 
345, 
V.  Radford,  414, 
Pritchett  v.  Mech.  &  Trad.  Ins.  Co.  162. 
Providence  &  Worcester  R.  R,  Co.  v. 

Yonkers  Fire  Ins.  Co.  290. 
Provincial  Ins.  Co,  v,  Resser,  176, 
Prudhomme  v.  Salamander  Fire  Ing, 

Co.  86. 
Putna.n  v.   Commonwealth  Ins.  Co. 
395,  400,  404,  407. 
v.  Home  Ins.  Co.  14. 


Quarner  v.  Peabody  Ins.  Co.  2,  29, 79, 

92,  243. 
Queen  Ins.  Co.  v.  Devinney,  273. 
Quinland  v.  Union  Fire  Ins.  Co.  4id. 


Raber  v.  Jones,  185. 

Rafsnyder's  App,  210. 

Railway  Ins.  Co.  v.  Burwell,  214. 

Railway  P,  Assur.  Co.  v.  Pierce,  131. 

Rankin  v.  Andes  Ins.  Co,  308. 

Rann  v.  Home  Ins.  Co.  67,  290. 

Rayner  v.  Preston,  165. 

Reach  v.  Niagara  Dist.  Mut.  Ins.  Co. 

228. 
Reaper  City  Ins.  Co.  v.  Brennan,  307, 

V.  Jones,  101. 
Redfield  v.  Holland  Purchase  Ins.  Co. 
1,  153, 
v.  Paterson  Ins.  Co.  56. 
Bedford  v.  Mut.  Fire  Ins.  Co.  101,  362. 
Redman  v.  jEtna  Ins.  Co.  245. 

v.  Hartford  Fire  ins.  Co.  370, 
371. 
Redmon  v.  Phoenix,  90. 
Reesor  v.  Provincial  Ins,  Co,  174. 
Rcid  V.  Lancaster  Fire  Ins.  Co.393, 335. 
Reitenbach  v.  Johnson,  140. 
Reife  V.  Wilson,  394. 
Relief  Fire  Ins.  Co.  v.  Shaw,  234. 
Residence  Fire  Ins.  Co.  v.  Hannawold, 

244,  261,  332. 
Revere  Ins.  Co.  v.  Chamberlain,  238. 
Reynolds  v.  Commerce  Fire  Ins.  Co. 
52,  66,  323. 
V.  Continental  Ins.Co.15,331, 
Rex  v,  Ins.  Co.  173. 
Re  .^Etna  Ins.  Co.  127. 
Re  Sands  Ale  Co.  174, 


« 


i 


TABLE  OP  GASES. 


XIX 


0.  V.  Meeker, 

Co.  1. 
po,  268. 
Co.  53,  356, 


,Tn9.Co.  162. 

R.  R.  Co.  V. 
).  290. 
iser,  170. 

er  Fire  Ins. 

ilth  Ins.  Go. 
404,  407. 
14. 


Co.  2,  29,79, 

ley,  273. 
ns.  Co.  4id. 


roll,  214. 
Pierce,  131. 
308. 
r,  290. 

Vlut.  Ins.  Co. 

irennan,  307. 
ones,  101. 
;hase  Ins.  Co. 

Co.  56. 

Co.  101,  363. 

.  345. 

ins.  Co.  370, 


Co.  174. 
.  Co.393, 335, 

40. 

law,  234. 
Hunnawold, 

)erlain,  238. 
?m  Ins.  Co. 
323 
ns.Co.15,321. 


< 


I 

i 


Re  Slater  Mut.  Fire  Ins.  Co.  185. 
Richmond  v.  Niaofaru  Ins.  Co.  101, 157. 
Richardson  v.  Westchester  Fire  Ins. 

Co.  101. 
Riley  v.  Franklin  Ins.  Co.  342. 
Robbins  v.  Firemen's  Fund  Ins.  Co. 
75.  140. 
V,  Victoria  Mut.  Ins.  Co  404. 
Roberts  v.  Continental  Ins.Co.101,111. 
Robinson  v.  Pacific  Fire  Ins.  Co.  387. 
Rockford  Ins.  Co.  v.  Nelson,  15,  83, 

94,  101.  108,  134,  151.  341,  355. 
Rockingham  Fire  Ins.Co.  v.  Shute,195. 
Roger  Williams  Ins.  Co.  v.  Carring- 

ton,  237,  270,  288. 
Rohrbach  v.  ^tna  Ins.  Co.  125. 

V.  Germania  Fire  Ins.  Co. 
154,  359,  360. 
Rokerv.  Amazon  Ins.  Co.  253,264,343. 
Roliand  v.  Citizens'  Ins.  Co.  36. 
Rollo  V.  Andes  Ins.  Co.  129. 
Rosenbcrgcr  v.  Washington  Fire  Ins. 

Co.  208. 
Ross  V.  Citizens  Ins.  Co.  39. 

V.  Mcrcliants  Mut.  Ins.  Co.  221, 
341. 
Rot'iischild  V.  Am.  Cent.  Ins.  Co.  51. 
Roussel  V.  St.  Nicholas  Ins.  Co.  178, 

243,  386. 
Royal  Ins.  Co.  v.  Davies,  48. 
V.  Rocdel,  78. 
V.  Stinson,  84. 
Ruggles  V.  Chapman,  132. 
Rumsuy  V.  Phoenix  Ins.Co.  33,253,373. 
Runkle  v.  Citizens  Ins.  Co.  390,  393. 
Russel  V.  Stale  Ins.  Co.  100. 
Ryan  v.  Springfield  Fire  Ins.  Co.  269, 

350,  373. 


Samo  V.  Goro  District  Mut.  Fire  Ins. 

Co.  13,  28,  88. 
Sands  v.  Graves,  190. 
V.  Iliil,  187. 
V.  Isaacson,  193. 
V.  Son,  169. 

V.  Standard  Ins.  Co.  32. 
Sanvey  v.  Isolated  Ins.  Co.  325. 
Sargent  v.  National  Ins.  Co.  403. 
Savage  v.  Howard  Ins.  Co.  34,  36,  67. 
Sawyer  v.  Dodge  Co.  Mut.  Ins.  Co. 

143,  381. 
Scammon  v.  Commercial  Union  Ins. 
Co.  33. 
V.  Kimball,  83,  196. 
Scanlon  v.  Union  Fire  Ins.  Co.  23. 
Schaffer  v.  Mut.  Ins.  Co.  307. 


Schimpf  V.  Lehigh  Valley  Mut.  Ins. 

Co.  208. 
Schoener  v.  Hekla  Fire  Ins.  Co.  3!. 
Schollenberger  v.  Phoenix  Ins.  Co  41. 
School  District  v.  .(Etna  Ins.  Co.  34. 
Schroeder  v.  Keystone  Ins.  Co.  167. 
Schulter  v.  Merchants'  Mut.  Ins.  Co. 

124. 
Schultz  v.  Merchants'  Ins.  Co.  358. 
Schumitsch  v.  American  Ins.  Co.  32, 

370. 
Scottish  Cora.  Ins.  Co.  v.  Plummer, 

20,  48. 
Scaring  v.  Central  Ins.  Co.  380. 
Security  Ins.  Co.  v.  Farrell,  81. 
Sentell  v.  Oswego  Co.  Farmer.s'  Ins, 

Co.  89. 
Severance  v.  Continental  Ins.  Co.  390. 
Shafer  v.  Phoenix  Ins.  Co.  406. 
Shannon  v.  Gore  Dist.  Mut.  Fire  Ins. 

Co.  98,  101,  361,  383. 
Shannon  v.  Hastings  Mut.  Fire  Ins. 

Co.  13,  110. 
Shaw  V.   Scottish    Commercial    Ins. 

Co.  395. 
Sherbonca   v.  Beaver  Mut.  Fire  Ins. 

Co.  356. 
Sherman  v.  Madison  Mut.  Ins.  Co.  76, 
101. 
V.  Niagara  Fire  Ins.  Co.  338, 
343,  385. 
Shertzcr  v.  Mutual  Fire  Ins.  Co.  344. 
Sherwood  v.  Agricultural  Ins.  Co.  31, 

315. 
Shuggart  v.  Lycoming  Fire  Ins.  Co.  34, 

100. 
Shultz  v.  Hawkeye  Ins.  Co.  197. 
Sias  v.  Roger  Williams  Ins.  Co.  33, 174, 

377. 
Simmons  v.  Ins.  Co.  V,  51,  95,  343. 
Simmonton  v.  Liv.  L.  &  G.  Ins.Co.  233. 
Simpson  v.  Ins.  Co.  300. 
Sinclair  v.  Canadian  Mut.  Ins.  Go.  37. 
Sleeper  v.  Ins.  Co.  125,  331. 
Sly  V.  Ottawa  Agricultural  Ins.   Co. 

401. 
Smiley  v.Citizens'Fire  Ins.Co.  131,382. 
Smith  V.  Binder,  7. 

v.  Commonwealth  Ins.  Co.  103, 

26'i,  353. 
v.  Exchange  Fire  Ins.  Co.  108, 

176. 
v.  Farmers'  Ins.  Co.  118,  369. 
V.  Farmers'  &  M.  Mut.  Ins.  Co. 

9!t,  119. 
V.  Glen's  F".Ils  Ins.  Co.  348,  351, 
359,  372. 


XX 


TABLE  OF  CASES. 


Smith  V.  Niagara  Dist.  Ins.  Co.  43, 
V.  Queen  Ins.  Co.  124. 
V.  Union  Ins.  Co.  28,  IM. 
Snow  V.  Carr,  113,  141,  383. 

V.  Stontz,  141. 
Societe  Bienfaisance  v.  Morris,  247. 
Sohna  v.  Rutffcrs  Fire  Ins.  Co.  ;!0(>. 
Solomon  v.  Metropolitan  Ins.  Co.  201. 
Sossamnn  v.  Paniliro  Irs.  Co.  31. 
Southern  Mut.  Ins.  Co.  v.  Freer,  110. 

V.  Kloebcr.  371. 
V.  Tnvlor,  213. 
V.   Yates,    303. 
3t»5. 
Southmaycl  v.  AVatertown  Ins.  Co.  18. 
Sowden  v.  Standani  Ins.  Co.  18,  371. 
Spooner  v.  Vermont  ]\Iiit  Iiis.  Co.  400. 
Sprapue  v.  Holland  Purchase  Ins  Vo. 

14.  363. 
Stache  v.  St.  Paul  Fire  Ins.  Co.  136, 

373. 
Stamps  V.  Codimcrciai  Fire  Ins.  Co. 

179. 
Standard  Oil  Co.  v.  Amazon  Ins.  Co. 
114,  WO. 
V.  Triumph  Ins.  Co. 
11.  107,  108. 
Stanton  v.  ^tna  Ins.  Co.  378 

V.  Home  Fire  Ins.  Co.  258, 

205. 
V.  AVestern  Ins.  Co.  348. 
State  V.  Beard  slev,  136. 
V.  Byrne,  51. 

V.  Richmond  Fire  Assoc.  134. 
V.  Spooner,  136. 
State  Ins.  Co.  v.  Maackens,  117,  170, 

173,  176,  21.-),  353,  258,  385. 
State  Ins.  Co.  v.  Todd,  111,  360,  201, 

287. 
State  Fire  Ins.  Co.  v.  Porter,  230. 
State  of  Wis.  v.  Farmer.  l.'!6. 
Stearns  v.  Quincy  Ins.  Co.  180. 
Steen  v.  Niagara'ins.  Co.  81»,  172. 
Steinbach  v.  LaFayette  Ins.  Co.  105, 
2'J7. 
V.  Relief  Ins.  Co.  275. 
Steinmetz  v.Franklin  Fire  Ins.  Co. 323. 
Steward  v.  Plia-nix  Fire  Ins.  Co.  850. 
Stewart  v.  Northampton  Mut.  Ins.  Co. 

200. 
Stickney  v.  Niagara  Dist.  Mut.  Ins. 

Co.  355,  357. 
Stinchfield  v.  Miliken,  182. 
Stockton  V,  Firemen's  Ins.  Co.  403, 
Stohn  V.  Hartford  Fire  Ins.  Co.  159 
233.  ' 

StoUe  V.  ^tna  Ins.  Co.  3,  46,  97, 


Storms  V.  Canada  Mut.  Ins.  Co.  184. 
Stover  V.  Ins.  Co.  300. 
Strong  V.  Phceni.x  Ins.  Co.  280. 
Stupctzki  V.  Tnin.-<atlantielns.  Co.  338. 
St.  Nicholas  Ins.  Co.  v.  Merchants' Ins. 

Co.  283.  202,  321,  32(i. 
St.  Paul  F.  &  M.  Ins.  Co.  v.  Johnson, 

372.  387. 
St.  Paul  Fire  Ins,  Co.  v.  AVclls,  334, 
Susgs  V.  Liv.,  L.  &  G.  Ins.  Co.  327. 
Sun  Ins.  Co.  v.  Earl,  220. 
Sunderlin  v.  Mim  Ins.  Co.  03,  383. 
Sutherhiiid  v.  Old  Dominion  Ins.  Co, 

Sutlierlin  v.  Un(iei  writers'  Agency,  75. 

Swan  V.  L.,  L.  it  G.  Ins.  Co.  252,  258. 

V.  Watertown  Fire  Ins.  Co.  30, 

138. 

Swarthout  v.  Chicago  &  N.  W.  R.  R. 

Co.  305,  388. 

Tafham  v.  Commerce  Ins,  Co,  28, 
Taylor  v,  .^tna  Ins.  Co.  358,  862. 
V.  Germania  In*  Co.  0,  231. 
V.  PlidMiix  Ins.  Co.  237. 
V.  Ins.  Co.  103.  343. 
Terpenning  V.  Agiieultural  Ins.  Co.31, 
Terry  v.  Imperial  Fire  Ins.  Co.  384. 
Texas  Banking  Co.  v.  llutchins,  58, 

245,  322. 
Texas  Ins.  Co.  v.  Cohen,  40. 

V.  Stone,  8(1,  07,  276, 
3.M),  306. 
Thayer  V.  Agricultural  Ins.  Co.  10. 

V,   Providence   Ins.    Co.   114, 
110,  220,  327. 
Thom.ns  v.  Builders' Mut.  In.s.  Co.  221, 
Thompson  v.  Citizens'  Ins.  Co.  41. 

V.  Liv.,  L.itG.  Ins.  Co.  102. 
Titus  v.  GhMi's  Falls  Ins.  Co.  33,  115, 
110,  125,  230,  253,  288,  344,  352, 
374. 
Tobey  v.  Russell,  184, 
Todd  v.  Germania  Fire  Ins.  Co.  243. 

V.  State  Ins.  Vo.  240. 
Tough  V.  Provincial  Ins.  Co.  100. 
Tovvnsend  v.  Merchants'  Ins.  Co.  104. 

320. 
Train  v.  Holland  Purchase  Ins.  Co.  55, 

222,  247, 
Tuck  v.  Ins.  Co.  65,  78, 
Tuckerman  v.  Home  Ins.  Co.  103,  150. 
Turner  v.  Quincy  Ins.  Co.  5,  387. 

Ulster  Co.  Ins.  Co.  v.  Leake,  170. 
Underwood  v.  Farmers'  Joint  Stock 
Ins.  Co,  345. 


TABLE  OP  OASES. 


XXI 


3.  Co.  184. 

.  280. 

IiiH.  Co.  :$38. 
rchiiiits'  Ins. 
(>. 
V.  Jolinson, 

Vv\h,  5{:«4. 
?.  Co.  3J7. 

>.  J>3,  88;{. 
lion  Ins.  Co, 

Ajjonoy,  75. 

Co.  •,>.•)•,'',  258. 

Ins.  Co.  :5!», 

N.  W.  K.  U. 


,  Co.  28. 
!.""»8.  :Ui2. 

'o. !».  2;n. 

.  287. 

:5. 

illns.  «'o.3i. 

^.  Co.  284. 
utcliinw,  58, 

n;. 

m;,  tl7,  27«, 

(50. 

s.  Co.  10. 

.s.    Co.    114, 

ins.  Co.  221. 

Co.  41. 
Ins.  Co.  102. 
Co.  ;ia,  115, 
J8,  344,  :{52, 


H.  Co.  243. 

I. 

'o.  100. 

ns.  Co.  104, 

Idh.  Co.  55, 


.'o.  103,  150, 
5,  387. 

CO,  170. 
loiut  Stock 


Underwriters'  Agency  v,  Sutlierlin,  10, 

170,  231. 
Un«;er  v.  People's  Ins.  Co.  81,  124. 
Union  Ins.  Co.  v.  Cliipp,  17,  101. 

V.  C.riint,  240. 

V.  Grc.-nleaf.  100. 
United  Life  Ins.  (Jo,  v.  Ins.  Co.  N.  A.  (>. 
Untersiiiifer  v.  Niaifiinv  Ins.  Co.  3. 


Van  Allen  v.  Fsirniers' Joint  Stock  Ins. 

Co.  1 1,  9(5,  07. 
Van  Alstyne  v.  iEtua  Ins.  Co.  103,  320. 
Van  Buren  v.  St.  Jo.sepii  Ins.  Co.  173, 

189. 
Van  Inwagcn  v.  t'ity  of  Cliieago,  12  '. 
Van  Loan  v.  Farmers'  Miit.  Ins.  Co. 

238. 
Van  Sclioick  v.  Niagara  Fire  Ins.  Co. 

07. 
Van  Tuvl  v.  Westebe-ster  Fire  Ins.  Co. 

10:i,  274. 
Van  Volkenburgv.  Lenox  Fire  Ins.  Co. 

(5.  55. 
Vanslvke    v.    Trempealeau  Co.  Mut. 

Fire  Ins.  Co.  212. 
Vilas  V.  N.  Y.  Cent.  Ins.  Co.  308. 
Vilenlnirger  v.  Proteetive  Mut.   Fire 

Ins.  Co.  112,  372. 
Vineland  v.  Security  Ins.  Co.  310. 
Virginia  Fire  Ins,  Co.  v.  Feagin,  33, 

113. 
V.  Ivloci)er,  05, 
147,  314,310. 
Vryan  v.  Peabody  Ins.  Co.  329. 


AVait  V.  Agricultural  Ins.  Co.  333. 
Wakefield  v.  Orient  Ins.  Co.  338. 
Waldeck  v.  Springfielil  F.  «.t  M.  Ins. 

Co.  403. 
Walker  v.  City  of  Springfield,  130. 
V.  Farmers'  Ins.  Co.  72,  244. 
V.  Linn  County,  20. 
Wallace  v.  German  American  Ins.  Co. 

42. 
Walsh  V.  Hartford  Fire  Ins,  Co.  18, 
95.343,  347,410. 
V.  Philadelphia  Fire  Assoc.  157, 
314. 
Walters  v.  St.  Joseph  Fire  Ins.  Co.  55. 
VVarbasse  v,  Essex  Co,  Mut.  Ins.  Co. 

174. 
Waring  v.  Lodcr,  174, 
Warner  v.  Burns,  187. 

V.  Ins.  Co.  of  N.  A.  204, 
Washburn  v.  Artisans'  Ins.  Co.  123, 


\  ''ash burn  v.  Great  Western  Ins,  Co. 
275, 
V.  Ins.  Ca.  133. 
V.  WeBtern  Ins.  Co.  122. 
Washington    Mut.    Fiie    Ins.   Co,    v, 

Hosenberger,  204. 
Washoe  Mantg.  Co,  v.  Hibernia  Fire 

Ins.  Co.  24M. 
Wass  V.  Maine  Mut.  Ins.  Co.  7. 
Waterhouse  v.  Gloucester  Fire  Ins. 

Co.  47. 
Watertown  Ins.   Co.  v.   Grover  &  B. 

Sewing  M,  Co.  »0,  89,  310,  317, 
Watertown  Fire  Ins,   Co,  v.  Simons, 

138,  317. 
Watrous  v.  Miss.  Valley  Ins.  Co.  180. 
Webster  v.  Phu'nix  Ins.  Co.  344. 
Wedrow  v.  Farmers'  Ins.  Co.  201. 
Weed  V.  Srheneclady  Ins.  Co.  241. 
Weeks  v,  Lvconiing  Ins.  Co.  101,  233, 

230,  2(54. 
Weir  V.  Northern  Cos.  Ins.  Co.  305. 
W«'st  V.  Citizens'  Ins.  Co.  27. 
Westchester  Fire  Ins.  Co.  v.  Dodge, 
172,  182.  387. 
V.  Earl,  00, 
222,  347. 
V.    Foster, 
105,  180,  327,  387. 
Western  Ins.  Co.  v.  Mason,  244,  310, 

330. 
Westniacott  v.  Hawley,  170. 
West   Rockingham  Fire   Ins.   Co.   v. 

Sheets,  243,  253,  309,  345. 
Wheeler  v.  American  Cent,  Ins.  Co. 
300. 
V.  Ins  Co,  103,  181. 
V.  Liv.,  L.  &  G.  Ins.  Co.  385, 

400. 
V.  Watertown  Fire  Ins.  Co. 
42,  227,  250,  374. 
Whipple  V.  N.  B.  &  M.  Fire  Ins.  Co.  2. 
White  V.  Agricultural  Ins.  Co.  307. 
V.  Connecticut  Ins,  Co.  11,  55 

240. 
V.  Robbins,  45. 
V.  Western  Ins.  Co.  257, 
Whited  V.  Germania  Fire  Ins.  Co.  19, 

104,  350. 
Wbitehouse  v.  Ins.  Cos.  285, 
Whitlaw  V.  Phoenix  Ins,  Co,  305,  377. 
Whitman  v.  Mason,  185, 
Whitney  v.  Black  River  Ins,  Co.  146, 

324,  333. 
Whittier  v,  Hartford  Fire  Ins,  Co.  384. 
Wilkins  v.  Fire  Ins.  Co,  55, 
V,  Ins,  Co,  301. 


xxu 


TABLB  OP  CASES 


Wilkinson  v.  First  Nat.  Fire  Ins.  Co. 

171. 
Williams  v.  Canada  Mut.  Ins.  Co.  332. 
V.  Firemen's  Fund  Ins.  Co. 

298. 
V.  German  Mut.  Fire  Ins.  Co. 

188, 189. 
V.  Hartford  Ins.  Co.  43,  69, 

116. 
V.  Mechanics'  &  Traders'  Iiis. 

Co.  298. 
V.  Niagara  Ins.  Co.  62,  101, 

112,253. 
V.  People's  Fire  Ins.  Co.  145, 

297. 
V.  Phaniix  Ins.  Co.  124. 
V.  Roger  Williams  Ins.  Co. 
151. 
Williamsburg  Ins.  Co.  v.   Frothing- 

liam,  48. 
Williamsburg  City  Ins.  Co.  v.  Cary, 

145,  170,  253. 
Williamson  v.  Commercial  Union  Ins. 
Co.  228,  300. 
T.  Iland-in  Hand  Mut.  Ins. 
Co.  41. 
Willis  V.  Germania  Ins.  Co.  112,  215, 
262,  300. 


I  Wilson  V.  Citizens'  Ins.  Co.  106,  809. 
I  V.  Queen  Ins.  Co.  226. 

V.  Standard  Ins.  Co.  412. 
Winans  t.  AUeuiania  Fire  Ins.  Co.  9, 

166. 
Winnisliiek  Ins.  Co.  v.  Schueller,  117, 

241,  252.  307. 
Witte  V.  Western  Mut.  Fire  Ins.  Co. 

200. 
Wolf  V.  Security  Fire  Ins.  Co.  23. 
Wood  V.  Firemen's  Ins.  Co.  20,  229, 
371. 
V.  Northwestern  Ins.  Co.  103, 
151.159,302. 
Wooddy  V.  Old  Dominion  Ins.  Co.  216, 

237,  240,  315. 
Woodruff  V.  Imperial  Fire  Ins.  Co.  68, 

101.  114,  339,  340,  373. 
Worswick  v.  Canada  Ins.  Co.  377. 
Wright  V.  Hartford  Fire  Ins.  Co.  53,  61. 
Wynans  v.  Allemania  Fire  Ins.  Co.  9, 

166. 
Wynne  v.  Liv.,  L.  &  G.  Ins.  Co.  .358. 

Yost  V.  American  Ins.  Co.  209. 
Young  V.  Hartford  Ins.  Cc.  9, 1 25,  252. 


\ 


Co.  106,  809. 
).  226. 
Co.  412. 
re  Ins.  Co.  9, 

^chueller,  117, 

Fire  Ins.  Co. 

IS.  Co.  23. 

1.  Co.  20,  329, 

Ins.  Co.  103, 
02. 
in  Ins.  Co,  216, 

ire  Ins.  Co.  68, 

373. 

8.  Co.  377. 

Ins.  Co.  53,  «1. 

"'ire  Ins.  Co.  9, 

.  Ins.  Co.  358. 


:'o.  200. 

Co.  9,125,  252. 


4 


TABLE  OF  KEPORTS. 


EEPORTS  OF  GREAT    BRITAIN. 


LAW  REPORT  SERIES. 


LAW  REPORTS,  NEW  SERIES 


VOL. 

VOL. 

IJouso  of  Lords : 

Chancery  Division, 

1-15 

Eiifrlish  and  Irish  Appeals, 

5-7 

Qucen'.s  Bench, 

1-6 

Scotch  and  Divorce  Appeals, 

2 

Exchequer, 

1-6 

Privy  Council  Appeal  Cases, 

4-0 

Common  Pleas, 

1-6 

Common  Law: 

Appeal  Cases,  , 

1-6 

Queen's  Bench, 

7-10 

Exchequer, 

7-10 

IRISH  REPORTS. 

Common  Pleas, 

7-10 

Equity : 

Equity  Cases, 

13-20 

Law, 
Equity, 

4-11 
6-11 

Chancery  Appeals, 

7-10   Law  Reports, 

1-4 

REPORTS  OF  BRITISH  AMERICA. 

CANADIAN   REPORTS. 

NEW  BRUNSWICK  REPORTS. 

VOL. 

VOL. 

Canada  Supreme, 

1-4 

Berton, 

1 

Upper  Canada: 

Allen, 

3-0 

Taylor's  King's  Bench, 

1 

Hannay, 

1-2 

Draper's  King's  Bench, 

1 

I'ugsley, 

1-3 

King's  Bench  (Old  Series), 

1-6 

Pugsley  and  B., 

1-3 

Queen's  Bench  (New  Series), 

30-46 

Common  Picas, 
Grant's  Chancery, 

21-31 
i6-26 

NOVA  SCOTIA  REPORTS. 

Grant's  Errors  and  Appeals, 

1-3 

Thompson's  Supreme  Court, 

1-2 

Tupper, 

1-3 

Cochran's  Supreme  Court, 

1 

Lower  Canada : 

01dri<rht's  Su  jre'rne  Com-t, 

1-2 

Quebec  Reports, 

1-5 

Russell  and  Chesley,  ' 

1-3 

Jurist, 

16-24 

Russell  and  Chesley  (New  Series), 

1 

REPORTS  OF  THE  UNITED  STATES. 

UNITED  STATES  SUPREME  COURT. 


Wallace, 

Otto, 

Morrison's  Transcript, 


VOL. 

15-23 

1-13 

1-2 


UNITED  STATES  CIRCUIT   AND 
DISTRICT  COURTS. 


Clifford, 
Benedict, 
Lowell, 
Dillon, 


3-4 

5-9 

2 

2-6 


VOL. 

Blatchford, 

10-18 

Davies, 

2 

Wood, 

1-3 

Brown, 

1 

Sawyer, 
Bissell, 

1-5 
1-7 

Hui^hs, 

1-3 

Chase, 

1 

Holmes, 

1 

Taney, 

McCrary, 

Flippin's  6th  Circuit, 

1 
1 

1 

Federal  Reporter,  (to  Jan.  24,  '82),  1-8,  9 


XXIV 


TABLE  OF  REPORTS. 


?ii 


STATE  COURT.S. 

New  York— eontinued. 

VOL. 

VOL. 

Barbour, 

64-67 

Alabama, 

47-64 

Lansing, 

1-1 

Select  Cases, 

1 

Thompson  and  Cook, 

1-6 

Arkansas, 

22,  23,  27-36 

Hun, 

1-24 

California, 

41-56 

Transcript  Appeal, 

1-7 

Colorado, 

1-4 

Yate's  Select  Cases, 

1 

Columbia,  District  of. 

(McArthur,)      1-3 

Sweeny's  Superior  Conrf , 

1-2 

Connecticut, 

39-47 

Jones  ik  Spencei  s  Supe;  ioi 

C'rt,l-13 

Dakota, 

1 

Daly's  Common  Pleas, 

4-8 

Delaware  (Houston), 

2-4 

Ahljotts'  Practice,  N.  S., 

13-16 

Chancery, 

1-2 

Abbotts'  New  Cases, 

1-9 

Florida, 

14-17 

Howard, 

44-60 

Georgia, 

45-64 

North  Carolina, 

68-84 

Idiilio, 

1 

Ohio. 

23-36 

Illinois, 

56-'.t7 

Tnppan's  Common  Pleas, 

1 

Brad  well  Appellate, 

1-8 

Di.'iney's  Cincinnati  Superior,            1 

Indiana, 

36-74 

Cincinnati  Superior, 

1-2 

Wilson^  Superior 

Court, 

1 

Oregon, 

4-8 

Iowa, 

33-54 

reniisylvania. 

70-93 

Kansas, 

8-21-) 

Grant's  Cases, 

3 

Kentucky, 

78 

Penrose  and  Watts, 

1-3 

Bush, 

9-14 

Brewster's  Kquity, 

1-4 

Hughes, 

1 

Pearson's  Decisions, 

1-2 

Sneed, 

1 

Pitlsiburgii  Reports, 

1-3 

Louisiana  (Annual), 

24-32 

Phihulelphia  Ucports, 

i-n 

Maine, 

6<»-72 

Rliode  Island, 

9-12 

Maryland, 

36-53 

South  Carolina, 

3-14 

Mnssacliusetts, 

107-130 

Dudley, 

1-2 

Michigan, 

25-43 

Riclwirdson, 

15 

Brown, 

1-2 

Tennessee : 

Minnesota, 

18-27 

Heiskell, 

4-12 

Mississippi, 

47-58 

Baxter, 

1-8 

Missour  , 

51-71 

Lea, 

1-3 

St.  Louis  Court  o1 

Ai)peal8, 

1-9 

Coojjcr's  Chancery, 

1-3 

Montana, 

1-3 

Texas, 

35-64 

Nebraska, 

1-11 

("ourt  of  Aijpeals, 

1-10 

Nevada, 

8-15 

Utah, 

1 

New  llanipsliire, 

51-57 

Vermont, 

45-53 

New  Jersey : 

Virginia : 

Vroom, 

6-13 

(J  rattan. 

22-33 

Green, 

8-18 

West  Virginia, 

5-17 

Stewart, 

1-7 

Witiconsin, 

29-52 

New  York : 

Court  of  Appeals, 

46-84 

Pinney, 
Washington  Territory, 
Wyoming, 

2-3 

Abbotts'  Api)eal8 

Decisions, 

1-4  1 

1 

MISCELLANEOUS  AND  ]»ERIODICALS. 


Albany  Law  Journal. 
Federal  Reporter. 
Insurance  Law  Journal, 


N.  Y.  Weekly  Digest. 
Reporter : 

Latest  Cases,  to  1882. 


.w4m 


VOL. 

64-67 

1-7 

1-6 

1-24 

1-7 

1 

nrf,  1-2 

LviorC'rt,  l-i:{ 

4-8 

i,  13-16 

1-9 

44-60 

68-84 

23-3f. 

as,  1 

iperior,  1 

1-2 

4-8 

70-'.)3 

3 

1-3 

1-4 

1-2 

1-3 

1-11 

9-12 

3-14 

1-2 

ir. 

4-12 

1-8 

1-3 

1-3 

35-54 

1-10 

1 

45-53 

22-I>3 

6-17 

2!t-52 

2-3 

1 

1 


TABLE  OF  ABBREVIATIONS. 


Abb.  Ct.  App.  Dec Abbott's  Court  of  Appenis  Decisions. 

Abb.  N.  C Abbott's  New  Cases.     X.  Y. 

Affi'd Affirmed. 

Affi'g Affirming. 

Ala Alabama. 

Alb.  L.  J Albany  Law  Journal. 

Allen Allen,  New  '  -inswick. 

Barb Barbour,  N 

Baxt Baxter,  Tennessee. 

Bias Bissell,  IT.  S.  Cireuit. 

Blatch Blatchford,  U.  S.  Circuit. 

Cal California. 

Can.  Sup Canada  Supreme. 

Cin.  Supr.  Ct Cincinnati  ir^uperior  Court. 

Cliflf Clifford,  U.  S.  Circuit. 

Cochran,  N.  S Cochran,  Nova  Scotia. 

Col Colorado. 

Conn Connecticut. 

Coop.  Ch Cooper,  Ciiancery.     Tennessee. 

Dill Dillon,  U.  S.  Circuit. 

Disney  Cin.  Sup Disney,  Cincinnati  Superior. 

Fed.  Rep Federal  Reporter. 

Ga Georgia. 

Grant,  Cas Grant  (!ase^    Canada. 

Gi'.ut,  Ch Grant,  Chancery.     Canada. 

Grant,  Err.  &  App Grant,  Errors  and  Appeals.     Canada. 

Grat Grattan,  Virginia. 

Hoiist Houston,  Delaware. 

Id Same, 

111 Illinois. 

Ind Indinnn. 

Ins.  L.  J Insurance  Law  Journal, 

Irish  Hep.  C.  L Irish  Common  Law  Report. 

Jones  <fe  Sp Jones  &  Spencer,  N.  Y. 

Kans Kansas. 

La.  Ann Louisiana  Annual. 

Lans Lansing,  N.  Y. 

Law  Rep.  Q.  B.  D Law  Report,  Queen's  Bench  Division, 

L.  C.  Jurist Lower  Canada  Jurist. 

Vol.  n.-C 


N.  Y. 


XXVI 


TABLE  OF  ABBREVIATIONS. 


•r!'l 


L.  R.  App.  Cas Law  Report,  Appeal  Cares.     English. 

L.  R.  Oil.  Div Law  Report,  Chancery  Division.     English. 

L.  R.  C.  P.  Div Law  Report,  Common  Pleas  Division.     English. 

L.  R.  C.  P Law  Report,  Common  Pleas.     English. 

L.  R.  Ired Law  Report,  Ireland. 

L.  R.  Q,  B.  Div Law  Report,  Queen's  Bench  Division.    English. 

Mass Massachusetts. 

Md Maryland. 

Me Maine. 

Mich Michigan. 

Minn Minnesota. 

Miss Mississippi. 

Mo  Missouri. 

Mo.  App Missouri  Appeal. 

Mont...., Montana.  < 

N.  C North  Carolina. 

Neb Nebraska. 

Nev Nevada. 

N.  H New  Hampsliire. 

N.  T New  York. 

N.  Y.  Weekly  Dig New  York  Weekly  Digesf , 

Oldright,  N.  S Oldrigiit,  Nova  Scotia. 

Pa Pennsylvania. 

Phil.  Rep Philntlelphia  Reports. 

Pugsley  &  B Pugsley  and  Burridge,  New  Brunswick. 

Quebec  L.  R Quebec  Law  Report. 

Q.  B Queen's  Bench. 

R.  I Rhode  Island. 

Rep Reporter. 

Rev'd Reversed,  ' 

Rev'g Reversing. 

Russel  AC.  N.  C Russell  and  Chesley,  Nova  Scotia. 

8.  c Same  Case. 

8.  P Same  Principle. 

Stew.  N.  J.  Eq.  R Stewart,  New  Jersey  Equity  Reports. 

T.  <fe  C Tliomps  .n  and  Cook,  N.  Y. 

Tenn Tennessee. 

Tex Texas. 

Tr.  App Transcript  of  Appeals,  N.  Y. 

Up.  Can.  C.  P Upper  Canada,  Common  Pleas. 

Up.  Can.  Q.  B Upper  Canada,  Queen's  Bench. 

Vroom,  N.  J.  L.  R Vrooni,  New  Jersey  Law  Report. 

Vt Vermont. 

Wa'l Wallace,  U.  S.  Supreme. 

Wis Wisconijin. 

W.  Va West  Virginia. 


P 
P 
P 
P 
P 


gliah. 

.     English. 

h. 

.    English. 


ERRATA. 


ck. 


Page  159,  §  2,  last  word  "  constitution  "  should  be  "  condition." 
Page  161,  §  7,  fourth  line  from  last,  the  word  "no"  should  be  "an." 
Page  175,  §  11,  first  line,  the  word  "mortgage"  should  be  "mortgagee." 
Page  187,  §  26,  second  line  from  last,  fhe  word  "in  "  should  be  "no." 
Page  280,  §  14,  first  line,  the  word  ''priority"  should  be  "privity." 

"      "        "    second  line,  the  word  "re-insured"  should  be  "re-insurer." 
"      "        "    third  line,  first  word  "insured"  should  be  "insurer." 
Page  285,  §  10,  last  line,  "  584  "  should  be  '•  684." 


F 


on 
Po 

fac 
inn 
for 
tie: 
th( 
18' 


tlu 

str 

sill 

ful 

eel 

tec 

los 

ity 

of 

go< 

tlu 

N. 


DIGEST 


OF 


FIRE    INST/RANCE    DECISIONS. 


ADJUSTMENT. 


§ 


1.  An  adjustment  claimed  by  the  assured  to  have- 
been  procured  by  fraud  of  the  company,  may  be  rescinded 
only  by  paying  back  or  tendering  the  amount  received. 
Potter  V.  Monmouth  Ins.  Co.  63  Me.  440.     1873. 

§  2.  A  compromise  agreement,  like  accord  and  satis^- 
faetion,  in  order  to  take  away  right  of  action  on  the  orig- 
inal contract,  must  be  an  agreement  which  is  substituted 
for  the  pre-existing  obligation.  It  must  bind  both  par- 
ties, so  tliat  suit  may  be  maintained  by  either  to  enforce 
the  same.  Luce  v.  Springfield  Ins.  Co.  2  Ins.  L.  J.  443 
1873.     U.  S.  Circuit,  Mich. 

§  3.  Policy  insured  $1,500,  being  divided  as  follows  r 
"$500  on  dwelling;  $600  on  barn;  $400  on  produce 
therein."  Defendant's  agent  paid  $400  for  a  loss  by  de- 
struction of  the  produce  and  took  a  receipt  from  the  as- 
sured in  which  he  declared  that  he  accepted  the  $400  as 
full  satisfaction  for  the  loss  sustained  on  the  policy,  "  can- 
celling $1,500  on  said  policy."  Held,  that  there  was  no 
technical  release,  and  the  payment  of  a  sum  for  a  distinct 
loss  formed  no  consideration  for  the  discharge  from  liabil- 
ity in  respect  to  the  insurance  on  the  barn,  and  the  want 
ot  consideration  for  the  discharge  of  that  liability  was  a 
good  answer  to  the  claim  that  it  was  covered  by  terms  of 
the  receipt.  Redfield  v.  Holland  Purchase  Ins.  Co.  56. 
N.  Y.  354.     1874. 

Vol.  ir.— 1 


% 


ADJUSTMENT. 


Ijl  ., 


\'M 


§  4.  When  an  adjustment  is  made  in  terms  "  subject 
to  terms  and  conditions  of  the  policies,"  the  true  construc- 
tion is  that  it  is  subject  to  all  the  terras  and  conditions 
except  such  as  are  superseded  by  the  fact  that  the  loss 
and  damage  have  been  fixed.  An  adjustment  with  such 
an  agreement  means  simply  that  the  company  will  pay 
the  loss  as  fixed  under  the  terms  and  conditions  of  the 
policy,  if  under  them  the  plaintiff  is  entitled  to  pay- 
ment. Whipple  V.  N.  B.  &  M.  Fire  Ins.  Co.  11  R.  I. 
139.    1875. 

§  5.  When  a  settlement  is  made  with  a  member  of  a 
firm  insured  who  is  a  minor,  through  fraud  of  company's 
agent,  the  firm,  having  received  the  money,  can  not  main- 
tain an  action  upon  the  policy  without  first  returning  the 
money.  Brown  v.  Hartford  Fire  Ins.  Co.  117  Mass.  479. 
1875. 

§  6.  An  adjustment  and  agreement  upon  the  amount 
of  loss  does  not  prevent  the  company  from  showing  in  a 
suit  upon  the  policy  that  the  conditions  of  the  latter  had 
been  previously  violated  so  as  to  discharge  it  from  lia- 
bilitv.  Colonius  v.  Hibernia  Fire  Ins.  Co.  3  Mo.  App.  56. 
1876. 

§  7.  An  adjustment  is  not  evidence  of  value  between 
any  others  than  the  parties  to  it.  Bard  well  v.  Conway 
Ins.  Co.  122  Mass.  90.     1877. 

§  8.  An  agent  having  special  authority  to  adjust  a 
particular  loss,  cannot,  by  virtue  thereof,  adjust  a  differ- 
ent one,  and  whatever  he  mav  assert  in  reference  to  a  dif- 
ferent one  does  not  affect  the  company.  Hartford  Fire 
Ins.  Co.  V.  Smith,  3  Col.  422.     1877. 

§  9.  An  action  upon  an  adjustment  itself  does  not 
lie.  It  is  necessary  to  aver  and  prove  that  the  company 
promised  to  pay  the  insured  the  amount  of  the  adjust- 
ment. Such  a  promise  is  the  gravamen  of  the  action. 
Quarrier  v.  Peabody  Ins.  Co.  10  W.  Va.  507.     1877. 

§  10.  When  adjuster,  after  agreeing  with  the  assured 
upon  the  amount  of  the  loss,  states  that  he  will  take  the 


ADJUSTMENT. 


3 


terms  "subject 
3  true  construe- 
and  conditions 
t  that  the  loss 
ment  with  such 
ipany  will  pay 
nditions  of  the 
ntitled  to  pay- 
3.  Co.  11  R  I. 


a  member  of  a 
d  of  company's 
iT,  can  not  main- 
3t  returning  the 

117  Mass.  479. 

pon  the  amount 
►m  showing  in  a 
P  the  latter  had 
it  from  lia- 
3  Mo.  App.  56. 


irge 


ff  value  between 
I  well  V.  Conway 

>rity  to  adjust  a 

,  adjust  a  differ- 

eference  to  a  dif- 

Hartford  Fire 


\,  itself  does  not 
lat  the  company 
it  of  the  adjust- 
n  of  the  action. 
507.     1877. 


papers  to  the  company  at  another  place,  and  that  the  as- 
sured would  hear  about  a  discount  in  a  few  days,  or  that 
he  would  get  his  money  in  sixty  days,  and  assured  never 
hears  from  him  or  the  company,  it  may  be  inferred  that 
the  action  of  the  adjuster  is  made  known  to  the  company 
on  his  return,  and  from  the  evidence  there  is  a  right  to 
infer  that  an  actual  adjustment  was  made  and  a  recovery 
under  a  count  alleging  adjustment  would  be  sustained  on 
such  proof.   StoUe  v.  ^tna  Ins.  Co.  10  W.  Va.  546.   1877. 

§  11.  An  adjustment  procured  by  fraud  is  not  bind- 
ing.    American  Ins.  Co.  v.  Crawford,  89  111.  62.     1878. 

§  12.  Assured  was  induced  by  representations  of  an 
adjuster  of  the  invalidity  of  claim  under  his  policy,  to  set- 
tle for  one  hundred  dollars,  and  to  execute  a  release.  He 
afterwards  repudiated  the  settlement,  and  brought  suit 
upon  the  policy,  claiming  that  the  release  was  procured 
by  fraud  and  deceit  of  company's  agent.  Trial  court  sub- 
mitted adjuster's  representation  of  illegality  of  claim  as 
an  element  of  fraud  upon  which  assured  had  a  right  to 
rely.  Held,  error;  that  the  representation  of  the  ad- 
juster constituted  an  expression  of  opinion  only  as  to  legal 
rights,  and,  though  erroneous,  should  not  have  been  sub- 
mitted to  jury  as  an  element  of  fraud,  ^tna  Ins.  Co.  v. 
Reed,  8  Ins.  L.  J.  350.  1878.  Sup.  Court  Commission, 
Ohio. 

§  13.  A  loiiS  adjusted  and  paid  becomes  an  accord 
with  satisfaction,  and  when  no  fraud  is  claimed,  is  a  bar 
to  another  action  on  the  same  claim.  Untersinger  v.  Ni- 
agara Ins.  Co.  10  Ins.  L.  J.  237.    1881.    Ohio  Dist.  Court. 

See  Agent,  §  8.  34,  FJ,  44,  70.  Contribution,  19.  Damages,  18.  Estop- 
pel, 6,  10,  32.  Evidence,  3,  19,  33,  34,  53,  67.  Examination  under  Oath,  4. 
Mortgagor  and  Mortgagee,  36.  Mutual  Company,  53,  94,  134.  Notice  of 
Loss,  15.  Otlier  Insurance,  42.  Payment  of  Loss,  3.  Proofs  of  Loss,  2,  5, 
6,  64,  56.  Recovery  Baclc  of  Losses,  3.  Waiver,  32,  37,  83,  33,  46.  War- 
ranty and  Representation,  27. 


with  the  assured 
he  will  take  the 


r 


ii  In 


liiii 


AGENT. 

§  1.  Company  cannot  be  enjoined  from  collection  of 
its  premiums  in  suit  brought  by  a  dismissed  agent.  Ma- 
chette  V.  Hodges,  1  Brewster,  313.      1867. 

§  2.  Soliciting  agent  or  broker  may  be  the  agent  of 
the  company,  and  clause  in  policy  making  him  agent  of 
assured  cannot  operate  to  change  his  character.  Com- 
mercial Ins.  Co.  V.  Ives,  56  111.  402.     1870. 

§  3.  The  custom  of  agents  ratified  by  the  company 
sufficiently  establishes  their  authority.  Illinois  Fire  Ins. 
Co.  V.  Stanton,  57  III.  354      1870. 

§  4.  A  commission  to  two  agents  jointly  expires 
with  the  death  of  one.  The  survivor  cannot  bind  the 
company  without  proof  of  subsequent  recognition  or  au- 
thority. Hartford  Fire  Ins.  Co.  v.  Wilcox,  57  111.  180. 
1870. 

§  5.  Authority  of  agent  is  not  limited  by  written  in- 
structions and  authority.  Hartford  Fire  Ins.  Co.  v.  Wil- 
cox, 57  111.  180.     1870. 

§  6.  When  the  question  is  us  to  whetlier  a  certain 
machine  is  included  in  the  term  "machinery"  as  used  in 
the  policy,  it  is  not  error  to  charge  the  jury,  that  "  if  de- 
fendant's agent  wrote  the  application,  and  did  so  in  such 
form  as  to  include  the  machine,  and  sucli  was  the  inten- 
tion of  the  parties,  defendant  is  liable  for  its  loss."  James 
River  Ins.  Co.  v.  Merritt,  47  Ala.  387.     1872. 

§  7.  Assured  may  ratify  action  of  another  in  obtain- 
ing a  policy  even  after  a  loss.  Excelsior  Fire  Ins.  Co.  v. 
Royal  Ins.  Co.  7  Lans.  138.     1872.     Affi'd,  55  N.  Y.  343. 

§  8.  The  fact  that  a  local  agent  has  to  some  extent 
taken  an  active  part  in  business  of  ascertaining  and  ad- 
justing losses,  does  not  prove  a  general  authority  to  act  in 
such  matters.    Such  an  authority  is  special  in  its  nature, 


AGENT. 


5 


llection  of 
rent.    Ma- 


le agent  of 
I  agent  of 
ter.     Cora- 


j  company 
1  Fire  Ins. 


;ly  expires 

bind  the 

ion  or  au- 

7  111.  180. 


written  in- 
Co.  V.  Wil- 


a  certain 
as  used  in 
lat  "  if  de- 
so  in  such 
the  inten- 
i."     James 

in  obtain- 
Ins.  Co.  V. 
N.  Y.  843. 

)uie  extent 

ig  and  ad- 

ty  to  act  in 

its  nature, 


and  must  be  established.  The  adoption  of  an  arbitrator 
previously  selected  by  other  parties  is  not  within  the  ap- 
parent scope  of  his  agency.  Turner  v.  Quincy  Ins.  Co. 
109  Mass.  568.     1872. 

§  9.  The  delivery  of  a  policy  to  a  broker  for  purpose 
of  delivery  to  the  assured,  constitutes  the  former  the  agent 
of  the  company  in  receiving  the  premium.  Cahill  v.  Andes 
Ins.  Co.  5  Biss.  211.  1872.  s.  p.  Planters  Ins.  Co.  v. 
Myers,  55  Miss.  479.     1877. 

§  10.  An  agent  can  authorize  his  clerk  to  contract 
for  risks,  to  deliver  policies,  to  collect  premiums,  and  to 
take  payment  of  premiums  in  cash  or  securities,  and  to 
give  credit;  the  act  of  the  clerk  in  all  such' cases  is  the  act 
of  the  agent,  and  binds  the  company.  Bodine  v.  Exchange 
Fire  Ins.  Co.  51  N.  Y.  117.  1872.  s.  p.  Eclectic  Life 
Ins.  Co.  V  Fahrenkurg,  68  111.  468.     1873. 

§  11.  If  company  itself  ignores  a  special  authority 
and  expressly  gives  or  encourages  an  agent  to  exercise  ad- 
ditional powers  for  several  years,  and  ratifies  and  confirms 
the  same,  thus  holding  him  out  to  the  world  as  rightfully 
exercising  all  those  powers,  thereby  inducing  the  public  to 
believe  in  and  rely  upon  his  agency,  company  cannot  after 
a  loss  repudiate  his  action  and  fall  back  upon  written  au- 
thority for  the  purpose  of  evading  the  legal  effect  of  those 
acts.  If  company  ratifies  such  acts  people  have  a  right  to 
presume  such  continued  acts  within  the  scope  of  his  au- 
thority, and  act  upon  such  presumption.  Farmers'  Ins. 
Co.  V.  Taylor,  73  Pa.  342.     1873. 

§  1 2.  When  company  delivers  blank  receipts  or  cer- 
tificates signed  by  its  officers  to  an  agent,  with  authority 
to  deliver  them  to  applicants,  it  is  bound  by  alterations 
and  erasures  made  in  such  papers  bv  the  agent  before  their 
delivery,  although  he  may  be  acting  in  violation  of  his 
duty  to  the  company.  Dayton  Ins.  Co.  v.  Kelley,  24  Ohio, 
345.     1873. 

§  13.  There  is  no  necessity  for  ratification  of  the  acts 
of  an  agent  authorized  to  procure  insurance,  when  such 


"1 


If 

'■mV 

hi! 


Mf! 


Q  AOEMT. 

acts  are  within  the  scope  of  his  authority.    Excelsior  Fire 
Ins.  Co.  V.  Royal  Ins.  Co.  55  N.  Y.  343.      1873. 

§  14.  An  agent  of  assured  authorized  to  apply  for 
permission  to  make  an  addition  to  policy,  cannot  be  held 
to  be  his  agent  to  consent  to  an  abandonment  or  cancella- 
tion of  the  insurance.  Van  \  alkenburg  v.  Lenox  Fire  Ins. 
Co.  51  N.  Y.  465.     1873. 

§  15.  Policy  provided  that  it  should  not  be  valid  un- 
less countersigned  by  a  duly  authorized  agent  at  a  certain 
place.  During  such  agent's  absence  his  partner  issued 
and  signed  a  policy  in  Jlrm  name,  which  aclion  was  adopt- 
ed and  acted  upon  by  former  upon  his  return.  The  report 
of  risk  sent  to  general  agent  contained  copy  of  the  policy, 
and  in  it  was  notice  of  fact  that  it  was  issued  in  firm 
name.  He  expressed  no  dissent,  but  wrote  for  infonnation 
in  reference  to  risk  itself.  Premium  was  paid  and  received 
by  company  with  knowledge  of  preceding  facts.  Held,  that 
there  was  a  ratification  of  the  acts  of  agents  in  issue  of 
policy,  and  that  company  was  liable.  United  Life  Ins.  Co. 
v.  Ins.  Co.  N.  A.  42  Ind.  588.     1873. 

§  16.  Agent  having  a  general  authority  to  act  binds 
company  by  acts  and  declarations  within  ordinary  and 
usual  scope  of  his  authority,  although  in  excess  of  private 
or  secret  instructions.  Lattomus  v.  Farmers'  Mut.  Ins. 
Co.  3  Houston,  404.     1873. 

§  17.  Evidence  showed  that  an  insurance  broker  was 
in  the  habit  of  bringing  applications  for  insurance  to  the 
conapany  in  behalf  of  others.  The  practice  was,  when 
policies  were  issued  upon  such  applications,  to  charge  the 
cash  premiums  to  the  broker,  who  collected  them  of  the 
assured,  and  accounted  for  them  to  the  company  in 
monthly  settlements.  In  a  suit  by  the  company  against 
the  broker  to  recover  certain  premiums  paid,  Ileld,  that 
the  evidence  was  competent  to  show  course  of  dealing  be- 
tween the  parties,  the  effect  of  which  was  to  make  the 
broker  the  agent  of  the  company  for  the  purpose  of  col- 
lecting the  premiums.  That  company  could  not  recover 
of  the  assured  after  payment  to  the  broker,  and  that  the 


AGENT. 


celsior  Fire 

apply  for 
lot  be  held 
or  cancella- 
)x  Fire  Ins. 


)e  valid  un- 
at  a  certain 
ner  issued 
was  adopt- 
The  report 

the  policy^ 
ed  in  firm 
information 
id  received 

JHeld,  that 
in  issue  of 
iife  Ins.  Co. 


o  act  binds 
dinary  and 
}  of  private 
i'  Mut.  Ins. 


broker  was 

'ance  to  the 

was,  when 

charge  the 

;hem  of  the 

ompany   in 

my  against 

,  Jlela,  that 

dealing  be- 

)  make  the 

pose  of  col- 

tiot  recover 

nd  that  the 


money  collected  by  latter  was  received  by  him  to  the  use 
of  the  company.  Insolvency  of  company  is  no  defense  to 
such  an  action.  Monitor  Ins.  Co.  v.  Young,  111  Mass. 
537.    1873. 

§  18.  Where  a  company  gives  an  agent  blank  certifi- 
cates of  insurance  to  be  filled  and  signed  by  him,  he  is 
the  agent  of  the  company,  and  any  limitation  upon  his 
authority  not  known  to  assured  cannot  aflfect  the  latter. 
Wass  v.  Maine  Mut.  Ins.  Co.  63  Me.  537.     1873. 

§  19.  When  an  agent  of  the  company  issues  policy 
and  renewal  receipt  with  his  name  written  upon  them  as 
completed  instruments,  company  cannot  object  that  they 
are  not  countersigned  by  such  agent.  Hibemia  Ins.  Co. 
V.  O'Connor,  29  Mich.  241.     1874. 

§  20.  When  a  policy  is  issued  to  a  broker,  it  cannot 
be  returned  by  him  and  a  new  one  substituted  in  its  place, 
without  consent  of  the  assured,  or  by  his  authority.  Ben- 
nett V.  City  Ins.  Co.  115  Mass.  241.     1874. 

§  21.  An  agent  of  a  company  which  has  become  in- 
solvent is  liable  to  assured  for  return  of  premium,  he 
being  notified  of  such  demand,  and  at  time  of  its  receipt 
not  having  paid  over  the  money  to  the  company.  In  such 
a  case  the  company  could  not  maintain  an  action  against 
the  agent  for  the  premium,  as  the  consideration  for  it  has 
failed.    Smith  v.  Binder,  75  111.  492.     1874. 

§  22.  An  insurance  broker  or  solicitor  has  no  author- 
ity to  make  binding  contract  of  renewal,  or  waive  con- 
dition as  to  prepayment  of  premium.  Hambleton  v. 
Home  Ins.  Co.  6  Biss.  91.     1874. 

§  23.  Agent  authorized  to  make  parol  contract  of  in- 
surance may  fill  up  policy  after  a  loss.  Ins.  Co.  v.  Colt, 
20  Wall.  5G0.     1874. 

§  24.  Agent  authorized  by  company  to  negotiate 
contracts  of  insurance,  and  intrusted  with  blank  policies 
signed  by  the  president  and  secretary,  with  authority  to 


1 


9 


AGENT. 


fill  up  and  deliver  the  same,  can  make  parol  contracts  of 
insurance ;  and  the  fact  that  credit  was  given  for  premium 
-cannot  affect  company's  liability.  The  proper  measure  of 
damages  in  such  a  case  is  the  amount  agreed  to  be  insured. 
Angell  V.  Hartford  Fire  Ins.  Co.  59  N.  Y.  171.     1874. 

§  25.  Owner  of  property  having  sold  it  to  plaintiff, 
wrote  on  back  of  policy  an  assignment  and  sent  it  by 
his  son  to  a  former  agent  of  the  company,  whose  au- 
thority had  been  revoked,  and  the  son  was  so  notified. 
He,  however,  subscribed  what  had  been  written  on  the 
policy:  "This  policy  to  enure  to  the  benefit  of  C.  S. 
Buchanan.  A.  T.  Holmes,  agent."  And  it  was  thus  re 
turned  plaintiff.  About  two  weeks  later  and  day  before 
the  fire  plaintiff  delivered  policy  to  his  son,  who  at  his 
request  took  it  to  the  oflSce  of  the  company,  informed  the 
secretary  of  the  transfer  and  facts,  showing  him  the  policy, 
and  asked  him  if  it  was  all  right.  Secretary  said  it  was. 
Held^  that  the  fonn  of  the  memorandum  was  sufficient  to 
«how  consent  to  the  assignment ;  and  that  what  took 
place  in  office  of  company  could  be  regarded  either  as  i 
ratification  of  what  Holmes  had  done  as  an  assumed 
agent,  or  as  a  consent  then  and  there  given.  In  either 
aspect  company  was  bound.  Buchanan  v.  Exchange  Fire 
Ins.  Co.  61  N.  Y.  26.     1874. 

§  26.  A  local  agent  has  no  authority  as  such  to  re- 
ceive notice  of  loss,  and  is  not  bound  to  communicate  it  to 
the  company.    Edwards  v.  Ins.  Co.  75  Pa.  378.     1874. 

§  27.  When  a  sub-agent  signs  and  issues  a  policy  for 
agent  of  company  which  is  subsequently  returned  to  the 
agent  who,  after  having  retained  it  for  some  days,  re- 
delivers the  policy  to  the  insured  after  being  informed  of 
the  facts  of  the  case  and  then  receives  the  premium,  com- 
pany is  as  much  bound  as  though  it  was  the  original  act 
of  the  agent  himself.  Evidence  that  other  policies  had 
been  returned  to  the  company  signed  by  the  sub-agent 
and  that  the  premiums  had  been  received  on  the  same 
without  objection  is  admissible  as  tending  to  prove  that 
the  company  authorized  or  ratified  the  act  of  their  agent 


AGENT. 


i) 


mtracts  of 
r  premium 
neasure  of 
)e  insured. 
1874. 

0  plaintiff, 
ent  it  by 
whose  au- 
JO  notified, 
en  on  the 
t  of  C.  S. 
18  thus  re 
[lay  before 
k'ho  at  his 
'ornied  the 
the  policy, 
aid  it  was. 
iifRcient  to 
vhat  took 
jither  as    i 

1  assumed 
In  either 

lange  Fire 


uch  to  re- 

licate  it  to 

1874. 

policy  for 
led  to  the 
days,  re- 
formed of 
lium,  com- 
riginal  act 
)licies  had 
sub-agent 
the  same 
prove  that 
heir  agent 


in  transacting  its  business  through  a  sub-agent.     Grady  v. 
American  Central  Ins.  Co.  60  Mo.  116.     1875. 

§  28.  The  rule  that  an  agent  cannot  delegate  his 
authority  to  act  does  not  apply  to  mere  ministerial  acts  to 
be  performed.  It  is  not  necessary  that  the  agent  should 
do  such  acts  in  person  ;  if  he  directs  the  act  to  be  done  or 
with  a  full  knowledge  of  the  act  adopts  it  as  his  own,  it  is 
sufficient.  Grady  v.  American  Central  Ins.  Co.  60  Mo. 
116.     1875. 

§  29.  An  agent  authorized  to  take  applications  in  so 
doing  acts  as  the  agent  of  the  company  and  not  of  the  as- 
sured. Simmons  v.  Ins.  Co.  8  W.  Va.  474.  1875.  And 
see  Brugger  v.  State  Investment  Ins.  Co.  5  Sawyer,  304. 

1878. 

§  30.  Agent  authorized  to  take  risks  and  issue  policies 
may  waive  by  parol  any  condition  in  policy  issued  by  him. 
Winans  v.  Allemania  Fire  Ins.  Co.  38  Wis.  342.  1875. 
s.  p.  Waives  prepayment  premium  by  giving  credit.  Tay- 
lor V.  Germania  Ins.  Co.  2  Dill.  282.  1872.  Young  v. 
Hartford  Ins.  Co.  45  Iowa,  377.     1877. 

§  31.  Clause  in  policy  making  one  who  procures  the 
insurance  the  agent  of  the  assured  is  binding  and  opera- 
tive ;  assured  must  be  regarded  as  assenting  to  it  when  he 
accepts  the  policy.  Millville  Ins.  Co.  v.  Collerd,  9  Vroom, 
N.  J.  L.  R.  480.     1875. 

§  32.  Person  authorized  to  accept  risks,  to  agree  upon 
and  settle  terms  of  insurance,  and  to  carry  them  into  effect 
by  issuing  and  renewing  policies,  must  be  regarded  as  the 
general  agent  of  the  company.  Pitney  v.  Glen's  Falls 
Ins.  Co.  Q:)  N.  Y.  6. 


1876. 


§  33.  Possession  of  blank  policies  and  renewal  re- 
ceipts signed  by  the  president  and  secretary,  is  evidence  of 
a  general  agency.  Pitney  v.  Glen's  Falls  Ins.  Co.  65  N. 
Y.  6.     1875. 

§  34.  While  agents  or  adjusters  may  have  an  implied 
authority  to  investigate  into  the  origin  and  causes  of  a 


10 


AGENT. 


^t 


i>  n. 


Ill 

if  !  '     I 


fire,  they  do  not  have  right  in  absence  of  express  authority 
to  institute  criminal  proceedings  under  a  charge  of  arson. 
Company  is  not  liable  in  an  action  for  false  imprisonment 
of  the  accused,  unless  agent's  act  in  instituting  the  pro- 
ceedings was  expressly  authorized  or  subsequently  ratified. 
Norman  v.  Ins.  Co.  of  N.  A.  4  Ins.  L.  J.  827.  1875.  U. 
S.  Circuit,  111. 

§  85.  Agent  to  make  surveys  and  to  take  applica- 
tions has  no  authority  to  vi^aive  conditions  requiring  writ- 
ten consent.  Thayer  v.  Agricultural  Ins.  Co.  5  Hun,  566. 
1875. 

§  36.  An  agent  has  apparent  authority  only  to  in^ 
sure  in  the  modes  authorized  by  the  charter  of  the  compa- 
ny, and  upon  the  terms  and  conditions  inserted  in  their 
policies  in  ordinary  use.  De  Grove  v.  Metropolitan  Ins. 
Co.  61  N.  y.  594.     1875. 

§  87.  Local  .agents  and  adjusters  have  no  authority 
to  waive  limitation  clause,  unless  assured  hud  been  in- 
duced by  their  fraud  to  delay  bringing  his  action.  Under- 
writer's Agency  v.  Sutherlin,  55  Ga.  266.     1875. 

§  38.     If  agent's  authority  is  limited  to  the  taking  of 
'  applications  for  insurance,  notice  to  him  does  not  bind  the 
company.     Dickinson  Co.   v.  Miss.   Valley  Ins.  Co.  41 
Iowa,  286.     1875. 

§  39.  Character  and  extent  of  agency  is  a  question  of 
fact  for  jury  to  determine.  Dickinson  Co.  v.  Miss.  Val- 
ley Ins.  Co.  41  Iowa,  286.     1875. 

§  40.  An  agent  of  company  who  fills  up  an  applica- 
tion without  the  knowledge,  request  or  authority  of  the 
assured,  cannot  be  regarded  as  agent  of  the  assured  in  so 
doing.    Kingston  v.  iEtna  Ins.  Co.  42  Iowa,  46.     1875. 

§  41.  Agent  authorized  to  obtain  insurance,  having 
done  so,  has  no  authority  to  consent  to  its  cancellation. 
Latoix  v.  Germania  Ins.  Co.  27  La.  Ann.  113.      1875. 

§  42.  Clause  in  policy  making  person  who  procures 
the  insurance  the  agent  of  the  assured  in  any  transaction 


AGENT. 


11 


ss  authority 
;e  of  arson, 
iprisonment 
ig  the  pro- 
itly  ratified. 
1875.     U. 


ake  applica- 
[iiiring  writ- 
Hun,  566. 

only  to  in- 
f  the  corapa- 
ted  in  their 
>politan  Ins. 

10  authority 
Ld  been  in- 
;iou.  Under- 
75. 

he  taking  of 

not  bind  the 

Ina.  Co.  41 


a  question  of 
r.   Miss.  Val- 


p  an  applica- 
bority  of  the 
assured  in  so 
16.     1875. 

•ance,  having 
cancellation. 
1875. 

rho  procures 
y  transaction 


'i» 


relating  to  the  insurance,  does  not  make  such  person  the 
agent  of  the  assured  to  receive  notice  of  its  termination. 
White  V.  Connecticut  Ins.  Co.  20  Mass.  330.     1876. 

§  43.  The  facts  that  a  person  is  authorized  to  solicit 
insurances,  receive  and  forward  applications,  and  on  re- 
ceipt of  the  policy  to  deliver  it  and  collect  the  premiums, 
and  to  collect  the  renewal  premiums  when  in  possession  of 
the  receipt  of  the  company,  and  upon  delivery  of  the  same 
to  the  assured,  are  not  suflficient  as  matter  of  law  to 
make  him  a  general  agent.  Merserau  v.  Phoenix  Mutual 
Life  Ins.  Co.  66  N.  Y.  274.     1876. 

§  44.  The  authority  of  a  local  agent  authorized  to 
leceive  applications  for  insurance  and  to  countersign  and 
deliver  policies  does  not  extend  to  adjusting  of  losses, 
or  waiving  of  proofs.  The  mere  fact  that  such  an  agent 
assumes  in  a  particular  case  to  do  these  acts  cannot  es- 
tablish his  authority.  Bush  v.  Westchester  Fire  Ins.  Co. 
63  N.  Y.  531.     1876.    Rev'g  2  T.  &  C.  629. 

§  45.  An  insurance  broker  may  be  regarded  by  the 
company  as  clothed  with  full  authority  to  act  for  the  as- 
sured in  procuring,  modifying  or  cancelling  a  policy,  and 
his  acts  in  respect  to  the  policy  are  same  as  if  done  by  as- 
sured. Standard  Oil  Co.  v.  Triumph  Ins.  Co.  64  N.  Y.  85. 
1876.     Affi'g  3  Hun,  591 ;  6  T.  «fe  C.  300. 

§  46.  A  local  agent  has  no  authority  to  waive  condi- 
tion requiring  proofs  of  loss.  Van  Allen  v.  Farmers* 
Joint  Stock  Ins.  Co.  64  N.  Y.  469.  1876.  Rev'g  6  T. 
<fe  C-  591. 

§  47.  Agents  in  the  matter  of  the  application,  and  all 
they  do  before  the  policy  is  issued,  are  the  accredited 
agents  act'^g  within  the  apparent  scope  of  their  authority, 
and  their  acts  bind  the  company.  Baker  v.  Home  Life 
Ins.  Co.  64  N.  Y.  648.     1876. 

§  48.  When  by  written  authority  a  person  is  author- 
ized to  act  as  "  agent  or  surveyor,"  Ileld,  that  the  word 
"surveyor"  should  not  be  construed  to  limit  the  word 


12 


AGENT. 


agent.      Lycoming  Fire  Ins.  Co.  v.  Wood  worth,  83  Pa. 
223.     1876. 

§  49.  Assured  is  bound  by  niisstateraent  of  a  broker 
in  a  written  application  intrusted  to  him.  Samo  v.  Gore 
District  Mut.  Fire  Ins.  Co.  26  Up.  Can.  C.  P.  405.    1876. 

§  f)0.  Agent  authorized  only  to  receive  and  forward 
applications  has  no  power  or  authority^  to  receive  notice 
of  the  existence  of  other  insurance.  Billington  v.  Cana- 
tlian  Mutual  Fire  Ins.  Co.  39  Up.  Can.  Q.  B.  433.     1876. 

§  51.  Application  provided  that  company  should  be 
responsible  for  all  surveys  made  by  their  agent  personally. 
Agent  who  issued  the  policy  requested  previous  owner  to 
fill  in  a  blank  application,  and  when  it  was  read  over  to 
the  assured  he  objected  to  the  distance  between  the  build- 
ings, whereupon  the  agent  stated  that  he  would  not  for- 
ward it  until  he  had  satisfied  himself  that  it  was  correct. 
The  agent  had  previously  visited  the  premises  himself. 
Held,  that  agent  having  taken  upon  himself  to  forward 
the  application  without  further  examination,  tliat  he  did 
80  from  his  previous  survey,  and  that  the  defendants  were 
responsible  for  it  as  a  survey  made  by  their  agent  in  per- 
son. Shannon  v.  Hastings  Mut.  Fire  Ins.  Co.  26  Up.  Can. 
C.  P.  380.     1876.    Affi'd  2  Tupper,  81. 

§  52.  In  an  action  brought  by  an  agent  against  com- 
pany for  damages  on  account  of  a  breach  of  its  contract 
with  him,  the  criterion  of  damages  is  to  ascertain  how 
much  such  agent  has  lost  by  the  defendant's  breach  of 
the  contract.  The  calculations  of  an  actuary  may  bo  pre- 
sumptive as  showing  what  would  be  resorted  to  as  show- 
ing the  value  of  renewals  on  policies  already  obtained. 
In  such  case  defendant  should  be  allowed  to  show,  in  miti- 
gation of  damages,  what  the  agent  was  making  in  another 
company  during  remainder  of  the  time  covered  by  the 
contract.  La  wis  v.  Atlas  Mutual  Life  Ins.  Co.  61  Mo.  534. 
1876. 

§  53.  Company's  insolvency  or  inability  furnishes  no 
excuse  for  a  breach  of  its  contract  with  an  agent.     If  it 


AGENT. 


13 


rth,  83  Pa. 

of  a  broker 
imo  V.  Gore 
05.    1876. 

nd  forward 
ceive  notice 
ion  V.  Cana- 
33.     1876. 

Y  should  be 
personally. 
IS  owner  to 
jad  over  to 
a  the  build- 
uld  not  for- 
ivas  correct. 
sea  himself, 
to  forward 
that  he  did 
idants  were 
^ent  in  per- 
J6  Up.  Can. 


ijainst  com- 
its  contract 
ertain  how 
}  breach  of 
nay  be  pre- 
to  as  show- 
y  obtained, 
ow,  in  miti- 
;  in  another 
i-ed  by  tlie 
31  Mo.  534. 


iirnishes  no 
;ent.     If  it 


''t 


desires  to  be  exempted  from  liability  in  such  an  event,  it 
should  stipulate  for  the  exemption  upon  the  happening  of 
the  contingency.  Lewis  v.  Atlas  Mutual  Life  Ins.  Co.  61 
Mo.  534.     1876. 

§  54.  Agents  authorized  to  make  contracts  of  insur- 
ance and  issue  policies,  cannot  delegate  their  authority  to 
another.  If  assured  takes  a  policy  signed  by  "  J.  W.  Hick- 
sham,  Agent,  per  Will.  W.  Kerr,"  it  is  sufficient  to  put 
him  upon  his  guard  as  to  the  extent  of  authority.  He 
has  no  right  to  take  the  policy  and  presume  that  Kerr 
was  the  agent  of  the  companv.  McClure  v.  Mississippi 
Valley  Ins^  Co.  4  Mo.  App.  148.     1877. 

§  55.  Agent  who  has  authority  only  lo  receive  appli- 
cations for  insurance,  to  collect  and  tr." "^smit  premiums,  has 
no  authority  to  waive  conditions  in  the  policy.  Baillie  v. 
Provincial  Ins.  Co.  21  L.  C.  Jurist,  274.     1877. 

§  50.  Agent  of  company  was  authorized  to  take 
notes  for  farm  risks,  for  which  purpose  he  was  furnished 
with  blanks.  He  received  note  for  insurance  on  a  stock 
of  goods  without  the  assured  having  any  notice  or  knowl- 
edge of  any  limitation  upon  his  authority.  Company  hav- 
ing defended  an  action  brought  upon  contract  of  insur- 
ance upon  the  ground  of  non-payment  of  the  premium, 
Held,  that  a  nonsuit  was  improper,  and  that  the  question 
of  authority  should  l)e  submitted  to  the  jury.  Johnson  v. 
Provincial  Ins.  Co.  26  Up.  Can.  C.  P.  113.  1876.  On  a 
subsequent  trial  a  nonsuit  was  sustained  on  the  ground  of 
nonpayment  of  the  premium,  it  appearing  that  the  note 
was  not  paid  when  due,  it  having  been  returned  to  the 
assured  after  the  fire  but  before  it  was  due,  and  retained 
by  him,  and  he  did  not  afterwards  pay  or  oft'er  to  pay  it. 
27  Up.  Can.  C.  P.  404.     1877. 

§  57.  Agent  of  conqiany  cannot  be  made  agent  of 
the  assured  by  virtue  of  an  agency  clause  in  the  policy. 
(Jans  V.  St.  Paul  Ins.  Co.  43  Wis.  108.     1877. 

§  58.  Local  agent  hatl  authority  to  receive  applica- 
tions for  insurance,  and  was  intrusted  with  blank  policies 


.1 


14 


AGENT. 


signed  by  officers  of  defendant,  which  he  was  accustomed 
to  fill  out  and  deliver  without  consultation  with  them. 
There  was  evidence  to  the  effect  that  with  knowledge  and 
consent  of  defendant's  officers,  he  had  frequently  issued 
policies  upon  property  of  the  same  class  without  submit- 
ting same  for  approval.  Such  agent  having  made  an  oral 
contiact  of  insurance,  Held,  that  the  evidence  was  suffi- 
cient to  sustain  finding  by  jury  that  the  contract  was 
within  the  apparent  scope  of  his  authority,  and  that  it 
was  therefore  binding.  Putnam  v.  Home  Ins.  Co.  123 
Mass.  324.     1877. 

§  59.  A  broker  or  solicitor  may  be  the  a^ent  of  the 
company,  and  a  clause  in  policy  making  him  the  agent  of 
assured  cannot  operate  to  change  his  character  or  status. 
Bassall  v.  American  Fire  Ins.  Co.  2  Hughes,  531.     1877. 

§  60.  An  agent's  authority  as  to  third  parties  con- 
tinues until  the  latter  are  in  some  way  informed  of  its 
revocation.    Ins.  Co.  v.  McCain,  6  Otto,  84.     1877. 

§  61.  If  assured  at  time  of  application  to  companrfu 
agent  has  no  knowledge  of  provisions  of  policy,  and  could 
not  know  that  by  it,  the  agent  in  taking  the  application 
was  to  be  deemed  his  agent  and  not  that  of  the  company, 
he  has  the  right  to  treat  the  agent  as  agent  of  the  compa- 
ny and  as  possessing  the  power  to  agree  upon  premiums 
and  to  fill  up  the  policy  and  deliver  it  to  him  as  an  oper- 
ative instrument.  Gates  v.  Penn.  Fire  Ins.  Co.  10  Hun, 
489.    1877. 

§  62.  Knowledge  of  company's  agent  does  not  alone 
establish  an  agreement  different  from  the  one  expressed  in 
the  policy.  Miagham  v.  Hartford  Fire  Ins.  Co.  12  Hun, 
321.     1877. 

§  63.  When  policy  contains  conditions  that  the  one 
who  procures  the  msurance  shall  be  the  agent  of  the  as- 
sured, and  also  that  the  application  must  be  made  out  by 
company's  authorized  agent,  and  application  is  made  out 
by  such  agent.  Held,  that  the  former  condition  does  not 
apply.  Sprague  v.  Holland  Purchase  Ins.  Co.  09  N.  Y. 
128.     1877. 


'5 


AGENT. 


15 


accustomed 
with  them, 
ivledge  and 
ntly  issued 
>ut8ubmit- 
ade  an  oral 
was  suffi- 
ntract  was 
md  that  it 
18.  Co.  123 

^ent  of  the 
he  agent  of 
r  or  status, 
^l.     1877. 

:)artie8  con- 
pmed  of  its 

.877. 

compaii'ifn 
',  and  could 
application 
le  company, 

the  compa- 
1  premiums 
as  an  oper- 
)o.  10  Hun, 

38  not  alone 
xpressed  in 
:!o.  12  Hun, 

liat  the  one 
of  the  as- 
lade  out  by 
8  made  out 
n  does  not 
!o.  69  N.  Y. 


§  64.  A  local  agent  of  company,  as  such,  does  not 
have  unlimited  authority  to  represent  his  principal.  Rey- 
nolds V.  Continental  Ins.  Co.  36  Mich.  131.     1877. 

§  65.  Authority  of  agent  cannot  be  established  by 
his  assumption  in  doing  the  act  relied  upon.  Reynolds  v. 
Continental  Ins.  Co.  36  Mich.  131.     1877. 

§  66.  Company  is  bound  by  the  acts  and  declarations 
of  its  agent  within  apparent  and  general  scope  of  his  au- 
thority, and  assured  is  not  affected  by  limitation  of  such 
authority  unless  same  is  known  to  him.  Rockford  Ins. 
Co.  V.  Nelson,  65  111.  415.  1872.  Eclectic  Ins.  Co.  v. 
Fahrenkurg,  68  111.  463.  1873.  Ins.  Co.  v.  Lyons,  38 
Tex.  253.  1873.  Am.  Cent.  Ins.  Co.  v.  McLanathan,  11 
Kans.  533.  1873.  Hartford  Ins.  Co.  v.  Farrish,  73  111. 
166.  1874.  Angell  v.  Hartford  Fire  Ins.  Co.  59  N.  Y. 
174.  1874.  Continental  Ins.  Co.  v.  Kasey,  25  Grat.  268. 
1874.  Georgia  Home  Ins.  Co.  v.  Kinnier,  28  Grat.  88. 
1876.     Ins.  Co.  v.  McCain,  6  Otto,  84.     1877. 

§  67.  Notice  to  a  soliciting  agent  authorized  to  re- 
ceive and  forward  applications  is  notice  to  the  company. 
Agency  clause  in  a  policy  subsequently  delivered  cannot 
make  him  the  agent  of  assured.  Boetcher  v.  Hawkeye 
Ins.  Co.  47  Iowa,  253.     1877. 

§  68.  Agent  has  no  power  to  revive  a  cancelled  pol- 
icy already  rejected  by  the  company  without  evidence  of 
authority  to  rescind  or  recall  the  action  of  his  principal. 
Such  authority  cannot  be  presumed.  Hartford  Fire  Ins. 
Co.  V.  Reynolds,  36  Mich.  502.     1877. 

§  69.  It  is  no  part  of  an  agent's  duty  to  his  company 
to  look  after  insurance  of  other  j)ersons,  and  all  that  he 
does  in  that  way,  beyond  what  relates  to  insurance  in  his 
own  company  in  the  usual  course  of  business  and  for  pre- 
miums paid,  is  outside  of  his  official  character.  As  an  in- 
surance broker  he  represents  the  insured  and  not  the  in- 
surer. Hartford  Fire  Ins.  Co.  v.  Reynolds,  36  Mich.  502. 
1877. 


16 


AGENT. 


§  70.  A  local  agent  authorized  to  make  contracts  of 
insurance  has  no  authority  as  such  to  adjust  losses  or 
waive  conditions.  Lohnes  v.  Ins.  Co.  of  N.  A.  121  Mass. 
439.     1877. 

§  71.  When  application  itself  states  that  the  agent 
making  it  is  to  be  deemed  the  agent  of  the  assured,  the  lat- 
;  f  is  bound  by  a  false  statement  contained  therein,  even 
although  inserted  by  the  agent  without  putting^  the  ques- 
tion to  the  applicant.  Bleakley  v.  Niagara  District  Ins. 
Co.  "  ;  Grant  Ch.  198.  1869.  And  if  the  application 
coiitaiLt  n.  I  such  clause,  company  is  not  bound  by  notice 
to  and  knowledge  of  agent  for  such  purpose.  Billington 
V.  Provincial  Ins.  Co.  2'Tupper,  158.  1878.  Rev'g  24 
Grant  Ch.  299. 

§  72.     An  insurance  broker  delivers  a  check  for  pre- 
miums to  company's  local  agent,  with  directions  to  retain 
it  until  he  could  ascertain  whether  policy  would  be  ac- 
cepted by  assured,  and  this  condition  is  assented  to  by 
the  agent,  who  agrees  to  retain  it,  and  the  assured  refuses 
to  accept  the  policy  because  it  does  not  conform  to  the  a\)- 
plication,  and  this  refusal  is  forthwith  communicated  to 
the  agent,  who  further  agreed  to  retain  the  check  until 
corrections  could  be  made,  and  the  agent  in  violation  of 
these  agreements  gives  up  the  check  to  special  agent  of 
the  company,  to  injury  of  ::he  broker.      Ileld,  that  upon 
these  facts  the  broker  was  entitled  to  recover  amount  of 
check  from  the  local  agent.     Bobson  v.  Jordan,  124  Mass. 
542.     1878. 

§  73.  Whether  a  broker  is  the  agent  of  assui'ed  or  of 
the  company  depends  upon  the  knowledge  of  the  assured ; 
if  he  deals  with  broker  as  agent  of  the  company,  and  re- 
ceives the  policy  from  him,  and  pays  to  him  the  premium 
under  such  belief,  company  is  estopped  by  its  act  in  de- 
livering policy  to  the  broker  from  availing  itself  of  agency 
clause  in  the  policy,  and  payment  of  premium  to  the  broker 
is  payment  to  tlie  company.  Lycoming  Fire  Ins.  Co.  v. 
Ward,  90  111.  545.     1878. 

§  74.  Conversations  with  broker  may  be  admissible 
as  part  of  the  rei^  gtsfw  upon   the   question  of  agency. 


AGENT. 


17 


contracts  of 
st  losses  or 
.121  Mass. 

,t  the  agent 
ired,  the  lat- 
herein,  even 
ig  the  qiies- 
District  Ins. 
!  application 
id  by  notice 
Billington 
Rev'g  24 

jck  for  pre- 

ns  to  retain 

oukl  be  ac- 

?nted  to  by 

ured  I'efuses 

in  to  the  ap- 

lunicated  to 

check  until 

violation  of 

al  agent  of 

,  that  upon 

amount  of 

^1,  124  Mass. 

issured  or  of 
the  assured ; 
any,  and  re- 
le  premium 

act  in  de- 
If  of  agency 
0  the  broker 

Ins.  Co.  V. 


admissible 
of  agency. 


Lycoming  Fire  Ins.   Co.   v.   Ward,   90  111.  545.     1878. 
Union  Ins.  Co.  v.  Chipp,  93  111.  96.     1879. 

§  75.    The  question  is  not  merely  what  the  real  au- 
thority of  agent  was,  but  what  was  his  apparent  author- 
*  ity,  as  shown  by  his  acts,  done  with  the  knowledge  and 
'^  assent  of  the  company.     McCabe  v.  Dutchess  Co.  Mut. 
I  Ins.  Co.  14  Hun,  599.     1878. 

I  §  76.  If  agent  is  authorized  to  indorse  written  con- 
sent upon  the  policy,  he  is  authorized  to  waive  conditions 
requiring  such  consent.  McCabe  v.  Dutchess  Co.  Mut.  Ins. 
Co.  14  Hun,  599.     1 878. 

§  77.  If  an  agent  acting  within  the  general  scope  of 
the  business  trusted  to  him  fills  up  in  his  own  language  a 
written  application  from  the  statements  of  the  assured 
fully  and  truthfully  made,  and  receives  the  premium  and 
issues  the  policy,  the  company  shall  not  be  permitted  to 
defeat  the  contract  by  denying  the  truth  of  the  applica- 
tion nor  the  authority  of  the  agent,  although  he  may  have 
transcended  his  authority,  unless  the  assured  is  chargeable 
with  knowledge  of  his  having  exceeded  his  authority. 
Ins.  Co.  V.  McGookey,  33  Ohio,  555.     1878. 

§  78.    Agent  of  foreign  insurance  company  who  re- 
ceives premium  after  revocation  of  the  license  of  the  com- 
5  pany  to  do  business  in  the  State,  is  liable  for  the  return  of 
.the  premium  to  the  assured,  and   such   liability  is  not 
iaflfected  by  the  fact  that  he  had  no  notice  of  the  revoca- 
tion of   the  license   when    he  received    the    premium. 
McCutcheon  v.  Rivers,  68  Mo.  122.     1878. 

§  79.  If  an  agent  of  company  authorized  to  receive 
'and  forward  application  takes  charge  of  the  preparation 
of  an  application  or  suggests  what  shall  be  the  answer  or 
what  will  be  sufficient  answers,  the  company  cannot  avoid 
'policy  because  they  are  false  or  untrue  if  full  disclosures 
were  made  by  tiie  applicant  to  the  agent.  Under  such 
circumstances  the  usual  clause  in  the  policy  making  the 
^agent  the  agent  of  the  assured  is  inoperative  to  prevent 
Isuch  effect.  Planters'  Ins.  Co.  v.  Myers,  55  Miss.  479. 
1879.  - 

Vol.  II.~2 


)  « 


,lJ 


18 


AGENT. 


§  80.  The  mere  fact  that  application  for  insurance  ia 
forwarded  to  the  office  of  the  company  for  approval  with 
knowledge  of  the  assured,  is  not  evidence  that  he  had 
notice  of  any  limitation  upon  the  authority  of  such  agent. 
American  Ins.  Co.  v.  Gallatin,  48  Wis.  36.     1879. 

§  81.  When  applicant  leaves  everything  to  tlie  agent, 
and  signs  his  name  to  a  blank  application,  and  the  agent 
in  filling  it  up  makes  a  mistake  as  to  the  nature  of  the 
risk,  the  applicant  is  bound  by  it;  the  application  contain- 
ing clause  that  the  agent  should  be  deemed  his  agent  and 
not  the  agent  of  the  company.  Sowden  v.  Standard  Ins. 
Co.  44  Up.  Can.  Q.  B.  95.     1879. 

§  82.  By  consenting  to  company's  decision  to  termi- 
nate his  authority  and  agency  at  end  of  calendar  year,  a 
general  agent  loses  his  claim  to  salary  after  that  time. 
Southmayd  v.  Watertown  Ins.  Co.  8  Ins.  L.  J.  914.  1879. 
Wis. 

§  83.  Agent  of  company  cannot  be  made  agent  of 
assured.  Eilenberger  v.  Protective  Mut.  Ins.  Co,  89  Pa. 
464.  1879.  8.  p.  Broadhead  v.  Lycoming  Ins.  Co.  14 
Hun,  452.    1878.    Chase  v.  People's  Fire  Ins.  Co.  Id.  456. 

§  84.  Agents  who  make  contracts  in  behalf  of  com- 
pany, can  dispense  with  conditions  contained  therein.  It 
IS  within  the  scope  of  their  apparent  powers  and  obliga- 
tory upon  the  company,  unless  assured  is  informed  of  their 
limitation.  Knowledge  of  agent  and  his  failure  to  cancel 
policy,  or  to  inform  the  company  of  a  fact  occurring  after 
issue  of  policy  effecting  a  forfeiture  without  written  con- 
sent indorsed,  does  not  estop  company  from  availing  itself 
of  the  defense.  Davey  v.  Glen's  Falls  Ins.  Co.  9  Ins.  L. 
J.  497.  1870.  U.  S.  Circuit,  Minn.  s.  p.  Walsh  v.  Hart- 
ford  Fire  Ins.  Co.  73  N.  Y.  5.     1878.    Rev'g  9  Hun,  421. 

§  85.  The  fact  that  the  watchman  or  guard  of  the 
property  of  another  who  happens  at  the  same  time  to  be 
an  insurance  agent,  does  not  thereby  incapacitate  him  from 
writing  a  valid  policy  upon  the  property  at  the  request  of 
the  owner.  Northrop  v.  Germania  Fire  In*.  Co.  48  Wis. 
420.     1879. 


AGENT. 


19 


§  86.  Where  party  employs  a  broker  to  procure  his 
insurance,  who  employs  another  broker  who  procures  the 
policy,  containing  clause  making  party  who  procures  the 
insurance  the  agent  of  assured,  and  policy  is  accepted  by 
the  latter,  Held,  that  such  acceptance  is  a  I'atification  of 
the  employment  of  the  second  broker,  who  under  the  con- 
dition as  to  agency  must  be  deemed  the  agent  of  assured. 
Grace  v.  Am.  Central  Ins.  Co.  16  Blatch.  433.     1879. 

§  87.  A  solicitor  employed  by  a  local  agent  of  a  com- 
pany is  the  agent  of  the  latter.  Davis  v.  Lamar  Ins.  Co. 
18  Hun,  230.     1879. 

§  88.  Company  is  not  bound  by  knowledge  of  a 
broker.  Ben.  Franklin  Ins.  Co.  v.  Weary,  4  Bradwell,  74. 
1879. 

§  89.  If  assured  intrusts  a  written  application  to  a 
broker,  it  is  sufficient  to  establish  authority  of  the  latter 
as  his  agent ;  notice  to  him  or  knowledge  on  his  part  of  the 
use  and  occupancy  of  the  premises  does  not  bind  the  com- 
pany who  issues  a  policy  upon  such  application.  In  such  a 
case  proposition  that  company,  by  delivery  of  its  policy  to 
the  broker,  clothes  him  with  the  badge  of  agency  upon 
which  the  assured  may  rely  in  receiving  the  policy  and  pay- 
ing his  money  thereon,  has  no  application.  Fame  Ins.  Co. 
V.  Mann,  4  Bradwell,  485.     1879. 

§  90.  Agent  who  takes  an  application  on  a  form  or 
blank  sent  to  him  by  the  company  for  the  purpose,  through 
a  firm  of  insurance  brokers,  is  the  agent  of  the  company, 
notwithstanding  clause  in  policy  making  him  agent  of  as- 
sured. The  company  is  bound  by  his  knowledge.  Par- 
tridge V.  Commercial  Fire  Ins.  Co.  17  Hun,  95.     1879. 

§  91.  Agency  clause  in  policy  cannot  operate  to 
make  company's  agent  agent  of  assured.  Whited  v.  Ger- 
mania  Fire  Ins.  Co.  76  N.  Y.  415.  1879.  Affi'g  13  Hun, 
191. 

§  92.  Semhle  a  broker  may  be  the  agent  of  the  com- 
pany as  well  as  the  assured,  notwithstanding  usual  agency 


ao 


AGENT. 


'i: 


I!  I 


.tt 


•:{!- 


clause  in  the  policy.     Wood  v.  Firemen's  Ins.  Co.  126 
Mass.  316.     1879. 

§  93.  When  policy  provides  that  it  shall  be  void  in 
case  of  double  insurance,  unless  consent  of  directors  is  in- 
dorsed upon  it,  an  agent  has  no  authority  to  give  such 
consent,  and  his  neglect  to  indorse  it  upon  policy  will  not 
excuse  assured.  Behler  v.  German  Mut.  Ins.  Co.  68  Ind. 
347.     1879. 

§  94.  Assured,  by  acceptance  of  policy  containing 
usual  agency  clause  is  bound  by  it,  and  a  broker  who  ob- 
tains the  policy  must  be  regarded  as  his  agent,  notwith- 
standing the  provisions  of  the  statute  of  1861,  chapter 
170  (Mass.).  Wood  v.  Firemen's  Ins.  Co.  126  Mass.  316. 
1879. 

§  95.  Under  Maine  Statutes  (R.  S.  c.  49,  sec.  49), 
when  annual  license  of  agent  expires,  in  order  to  renew  it, 
a  certificate  that  the  agency  continues,  not  a  new  appoint- 
ment, is  required  of  the  company.  Schottish  Com.  Ins. 
Co.  V.  Plummer,  70  Me.  540.     1880. 

§  96.    Semhle  broker's  authority  ends  with  delive; 
of  policy.    How  v.  Union  Mut.  Life  Ins.  Co.  80  ~~ 
39.     1880. 


livery 
N.  Y. 


I  97.  Notice  to  an  insurance  broker,  accustomed  to 
receiving  and  forwarding  applications  and  receiving  and 
delivering  policies,  after  policy  is  issued,  is  not  notice  to 
the  company.  His  declaration  when  he  solicits  the  insur- 
ance that  he  is  company's  agent  does  not  bind  the  com- 
pany. Devens  v.  Mechanics  &,  Traders  Ins.  Co.  83  N.  Y. 
168.     1880. 

§  98.  Assured  may  ratify  unauthorized  act  of  an 
agent  in  procuring  insurance.  Walker  v.  Linn  County, 
10  Ins.  L.  J.  666.     1880.    Mo. 

§  99.  Agent  unable  to  take  risk  in  any  company 
represented  by  him,  applied  to  another  agent  and  ob- 
tamed  policy  of  defendant  and  delivered  it  to  the  assured. 
At  time  of  delivery  of  the  policy  the  former  knew  and 


AGENT. 


21 


in 


consented  to  other  insurance.  The  latter  agent  had  no 
knowledge  of  the  other  insurance,  and  policy  contained 
no  consent.  Held,  by  statute  of  Wisconsin  (R.  S.  sec. 
1977),  that  the  agent  who  obtained  and  delivered  the 
policy  was  the  agent  of  the  defendant,  and  that  his  knowl- 
edge and  consent  to  other  insurance  bound  the  defendant, 
and  that  the  defendant  was  estopped  from  claiming  a  for- 
feiture on  ground  of  the  other  insurance.  Schoener  v. 
Hekla  Fire  Ins.  Co.  10  Ins.  L.  J.  306.     1880.     Wis. 

§  100.  It  is  against  the  policy  of  the  law  for  a  person 
to  act  as  agent  for  both  the  company  and  the  assured. 
He  cannot  be  the  agent  of  both  parties  in  the  same  trans- 
action ;  if  he  so  act  the  contract  may  be  avoided  by  either 
party.  People's  Ins.  Co.  v.  Paddon,  8  Bradwell,  447, 
1881. 

§  101.  Application  for  a  policy  having  been  made  in 
writing  to  company,  it  has  no  right  to  rely  on  any  verbal 
representations  or  statements  made  by  a  messenger  or 
clerk  sent  by  the  broker  to  its  agent,  nor  to  assume  that 
such  statements  or  representations  are  made  with  knowl- 
edge and  consent  of  the  assured.  Dolliver  v.  St.  Joseph 
Fire  Ins.  Co.  10  Ins.  L.  J.  380.     1881.    Mass. 

§  102.  When  company  is  advised  of  issue  of  policy 
by  daily  report  of  the  agent,  subsequently  receives  notice 
of  loss,  ana  proofs,  and  requires  assured  to  submit  to  on 
examination  under  a  clause  in  the  policy,  and  receives 
and  retains  the  premium,  without  ever  offering  to  return 
it,  or  raising  any  objection  as  to  authority  of  the  agent 
until  after  action  is  brought,  it  is  estopped  to  deny  agent's 
authority  to  issue  the  policy  upon  property  located  out  of 
his  territory  as  specified  in  his  written  certificate  of  au- 
thority, of  which  the  assured  has  no  knowledge.  Knox 
v.  Lycoming  Ins.  Co.  10  Ins.  L.  J.  89.     1881.     Wis. 

§  103.  Agent  who  receives  and  forwards  applications 
to  general  agent  of  company,  receives  policies,  delivers 
them  and  collects  premiums,  is,  under  the  New  Hamp- 
shire statute,  the  agent  of  the  company  and  not  of  the  as- 
sured in  framing  application.    Company  is  bound  by  his 


22 


AGEMT. 


|)     i 


knowledge  of  facts  and  his  mistake  in  obtaining  policy 
insuring  interest  of  owner  and  mortgagor  instead  of  inter- 
est of  mortgagee  as  requested  and  so  understood  upon  his 
representation.  In  such  a  case  policy  will  be  reformed  to 
cover  the  interest  as  intended.  Sias  v.  Roger  Williams 
Ins.  Co.  10  Ins.  L.  J.  500.     1881.    U.  S.  Circuit,  N.  H. 

§  104.  Policy  contained  condition  that  "no  agent  is 
empowered  to  waive  any  of  its  conditions  without  special 
authority  in  writing  from  the  company."  Ileld^  that  it 
applied  to  local  agents  and  not  to  general  agents,  who,  in 
absence  of  proof  to  the  contrary,  are  presumed  to  posp 
authority  to  transact  all  business  relating  to  insurance 
business  of  the  company  generally.  Carrigan  v.  Lycou*- 
ing  Ins.  Co.  10  Ins.  L.  J.  606.     1881.    Vt. 

See  Adjustment,  §  8.  Alienation,  38,  62.  Alteration,  3.  Application,  2, 
9,  11, 15.  Cancellation,  11,  16,  17.  Certificate,  14.  Concealment,  7.  Con- 
eammation  of  Contract,  6,  9,  11, 13.  Description,  2.  Estoppel,  1,  2,  7,  8,  9, 
12, 14, 17,  18, 19,  21,  22,  28,  24,  25,  26,  27,  28,  29,  30.  31,  38,  34.  35,  86,  37. 
Evidence,  1,  23,  82,  63,  58,  61, 65,  74,  75,  82, 83,  90.  Fraud  and  F.lae  Swear- 
ing, 7.  Foreif!^  Company,  1.  4, 10,  23,  36,  62.  Increase  of  Risk,  18.  Inter- 
est in  Policy,  25.  Lighting,  8.  Mutual  Company,  55,  62,  74,  124,  139,  154. 
Notice  of  Loss,  1,  8,  21.  Other  Insurance,  1,  5,  12,  83,  85,  45,  46,  61,  54. 
Parol  Contract,  4,  6,  9,  13,  22,  28,  38,  34.  41.  Pleading  and  Practice,  20,  26. 
Premium,  4,  9, 15, 18,  24.  Proofs  of  Loss,  16.  30,  54.  Questions  for  Court 
and  Jury,  14,  17.  Rebuild  or  Replace,  8.  Reformation,  8, 11.  Renewal,  3, 
11.  Removal  Causes  to  U.  8.  Court,  1.  Storing  or  Keeping,  18,  22.  Tiile, 
48,  67.  Usage  or  Custom,  8,  9.  Use  and  Occupation,  4, 9.  Vacant  or  Un- 
occupied, 6, 18,  23,  40.  Waiver,  2,  6,  8,  10, 11, 12,  18,  21,  28,  24,  23,  33,  84, 
39,  45.    Warranty  and  Representation,  84,  86,  87,  89,  40,  41,  68,  70,  8i,  98, 


ALIENATION. 

§  1.  Condition  avoiding  policy  in  case  of  sale  does 
not  apply  to  a  stock  of  goods  kept  for  sale.  Wolf  v.  Se- 
curity Fire  Ins.  Co.  4  Abb.  Ct.  App.  Dec.  286.     1868. 

§  2.  Assured  sold  the  property  and  himself  indorsed 
the  policy,  "  Payable  in  case  of  loss  to  Edward  C.  Bates,'* 
the  purchaser,  and  sent  it  to  defendant,  with  request  that 
they  consent  to  the  indorsement,  but  did  not  notify  then 
of  the  transfer.  Company  indorsed  upon  the  policy, 
"Consent  is  hereby  given  to  the  above  indorsement." 
Policy  provided  that  if  property  was  sold  without  consent 
of  the  company  indorsed  upon  the  policy,  it  should  be- 
come void ;  that  if  sold  it  could  be  continued  for  benefit 
of  purchaser  if  consent  was  given  to  be  evidenced  by  a 
certificate  of  the  fact,  or  by  indorsement  upon  the  policy. 
Heldj  that  company  merely  consented  in  case  of  loss  to 
property  of  the  assured  to  pay  the  amount  to  the  plaint- 
ifl',  and  did  not  consent  that  policy  should  continue  for 
benefit  of  any  one  except  the  insured.  Verdict  for  plaint- 
iff set  aside.  Bates  v.  Equitable  Fire  Ins.  Co.  3  Cliff. 
215.     1868. 

§  3.  Condition  provided  that  if  the  "  property  be  sold 
or  conveyed  "  it  should  be  void.  Held,  to  avoid  the  policy 
assured  must  sell  the  wTwle  of  his  interest ;  so  long  as  he 
retains  any  interest  policy  is  binding.  Scanlon  v.  Union 
Fire  Ins.  Co.  4  Biss.  511.     1869. 

§  4.  A  sale  by  assured  to  three  persons,  one  of 
whom  re-conveys  ou  b.im,  and  the  other  two  giving  him 
mortgages  to  secure  the  purchase-money,  is  an  "aliena- 
tion "  avoiding  the  policy.  Home  Mut.  Ins.  Co.  v.  Ilaus- 
lein,  60  111.  521.     1871. 

§  5.  A  sale  and  transfer  of  the  property  insured^ 
taking  a  mortgage  back  for  the  purchase-money,  is  such  a 
transfer  or  change  in  the  title  as  avoids  the  policy.  Bates 
V.  Commercial  Ins.  Co.  2  Cin.  Supr.  Ct.  195.     1872. 


24 


ALIENATION. 


1.1 :  i! 


1'^ 


§  6.  Where  policy  was  issued  to  "  the  heirs  and  rep- 
resentatives of  Andrew  Kirk,  deceased,"  and  contained 
provision  "  if  the  property  be  sold  or  transferred,  or  any 
change  takes  place  in  title  or  possession,  whether  by  legal 
process  or  judicial  decree,  or  voluntary  transfer  or  con- 
veyance, without  the  consent  of  the  company  indorsed 
thereon,  policy  shall  be  void,"  and  the  executrix  sold  the 
property  without  consent  or  knowledge  of  the  company, 
to  a  party  in  possession  under  a  lease,  for  $8,000,  taking 
back  a  mortgage  for  $7,000.  After  which  the  executrix  re- 
signed and  plaintiff  was  appointed  trustee  and  adminis- 
trator with  will  annexed.  lleld,  plaintiff  entitled  to  ben- 
efit of  policy,  although  not  specially  named ;  and  that 
policy  was  rendered  void  by  the  sale  of  the  property  by 
the  executrix.  Savage  v.  Howard  Ins.  Co.  52  N.  Y.  502. 
1873. 

§  7.  If  the  assured  is  dead  and  the  property  insured 
is  sold  under  proceedings  in  the  orphans  court,  and  the 
loss  having  occurred  between  the  sale  and  the  confirma- 
tion, there  is  no  such  alienation  as  avoids  the  policy.  In 
such  a  case  legal  title  is  in  the  heirs  of  the  assured,  and 
the  action  on  the  policy  is  rightly  brought  in  the  name  of 
the  administrators  to  the  use  of  the  vendee.  Farmers' 
Mutual  Ins.  Co.  v.  Graybill,  74  Pa.  17.     1873. 

§  8.  A  void  sale  is  not  an  alienation.  School  Dis- 
trict V.  ^tna  Ins.  Co.  62  Me.  330.     1873. 

t9.  Assured  having  sold  property  took  his  policy  to 
roker  who  obtained  it,  who  indorsed  in  pencil  upon 
the  back,  "  Loss,  if  any,  payable  to  B.  Transfer,"  and 
sent  it  to  the  defendant.  The  secretary  read  the  memo- 
randum,  wrote  on  the  policy,  "  Loss,  if  any,  payable  to 
B.,"  and  afiixed  a  stamp  required  only  for  a  new  policy, 
and  returned  it.  Held.thdii  the  word  "transfer'^  con- 
veyed sufficient  notice  to  the  secretary  of  what  was  de- 
sired, and  the  real  character  of  the  transaction  to  which  it 
must  be  assumed  he  assented.  Batchelor  v.  People's  Ins 
Co.  40  Conn.  56.     1873. 

§  10.    Condition  provided  that  if  "  the  interest  of  the 
parties  should  be  changed  "  without  written  consent,  pol- 


ALIENATION. 


25 


icy  should  be  void.  The  assured  by  a  contract  under 
seal  contracted  to  sell  the  property  to  one  Scudder,  who 
paid  part  of  the  consideration.  Held^  that  the  contract 
of  sale  and  payment  constituted  a  change  of  interest. 
Germond  v.  Home  Ins.  Co.  2  Hun,  540.     1874. 

§  11.  Policy  provided  that  "in  case  any  transfer  or 
termination  of  the  interest  of  the  assured,  or  any  part  of 
his  interest  in  the  property  hereby  insured,  either  by  sale, 
contract  or  otherwise,  or  in  case  any  mortgage,  lien  or  in- 
cumbrance shall  be  executed  thereon,  or  shall  attach 
thereto,  or  if  the  title  thereto  shall  be  in  any  way  changed 
or  aflfected  after  the  date  of  this  policy,  or  if  any  proceed- 
ings for  sale  thereof  shall  be  had,  commenced  or  taken,  or 
if  the  title  thereto  shall  be  or  become  less  than  an  abso- 
lutely perfect  one  without  consent,"  it  should  be  void. 
About  a  month  previous  to  the  fire  the  holder  of  a  mort- 
gage upon  the  property  insured  commenced  proceedings 
to  foreclose  it  by  advertisement,  and  such  proceedings 
were  brought  to  the  knowledge  of  the  assured  about  two 
weeks  before  the  fire,  but  no  notice  thereof  was  given  to 
the  defendant.  IleM^  that  so  far  as  any  obligation  to  give 
notice  to  defendant  was  concerned,  assured  was  entitled 
to  a  reasonable  length  of  time  for  that  purpose  after 
learning  that  proceedings  had  been  commenced,  and  that 
"what  would  be  a  reasonable  time"  would  be  a  question 
for  the  jury,  and  "that  the  policy  was  not  avoided  by 
the  commencement  of  the  foreclosure  proceedings."  Michi- 
gan State  Ins.  Co.  v.  Lewis,  30  Mich.  41.     1874. 

§  12.  The  effect  of  a  "transfer  or  change  of  title"  is 
not  altered  by  the  fact  that  the  loss,  if  any,  was  made 
payable  to  a  mortgagee,  as  it  is  not  the  latter's  interest 
which  is  insured.  Perry  v.  Lorillard  Fire  Ins.  Co.  61  N. 
Y.  214.     1874. 

§  13.  An  adjudication  in  bankruptcy  and  an  assign- 
ment by  the  register  is  a  "  transfer  and  change  of  title." 
Perry  v.  Lorillard  Fire  Ins.  Co.  61  N.  Y.  214.    1874. 

§  14.  Property  was  sold  and  policy  transferred  Feb- 
ruary 22, 1869.    March  3d  plaintiff  mailed  policy  to  de- 


I 


|g  ALIENATION. 

fendant,  requesting  its  consent  to  transfer.  This  was  re- 
ceived on  the  fifth.  Defendant's  secretary  answered  de- 
clining to  consent,  inclosed  check  for  unearned  premium, 
and  the  policy  was  indorsed  cancelled.  Property  was  de- 
stroyed by  fire  on  the  fourth ;  of  this  defendant  had  no 
knowledge  when  its  reply  was  written.  Policy  contained 
clause  against  sale  or  transfer,  providing  that  in  such  case 
insurance  should  immediately  cease.  Also  clause  giving 
option  to  company  of  cancellation  on  notice  and  payment 
of  return  premium,  and  there  was  a  by-law  of  the  compa- 
ny requiring  surrender  of  policy  in  such  case.  Held,  that 
policy  was  void  at  time  of  fire  because  of  the  sale,  and  that 
assured  was  entitled  to  return  premium  only  on  surrender 
of  the  policy,  and  his  failure  so  to  do  could  not  give  any 
claim  or  continue  liability  of  company.  Buchanan  v. 
Westchester  Co.  Mut.  Ins.  Co.  61  N.  Y.  611.     1874. 

§  15.  Policy  contained  clause  against  alienation,  and 
also  "  the  commencement  of  foi'eclosure  proceedings  or  the 
levy  of  an  execution  shall  be  deemed  an  alienation  of  the 
property."  A  mechanic's  lien  on  the  building  insured 
was  foreclosed,  execution  issued,  and  sale  advertised. 
Held,  that  the  words  "  foreclosure  proceedings  "  were  not 
intended  to  refer  to  proceedings  to  enforce  a  mechanic's 
lien,  that  they  bad  reference  only  to  the  foreclosure  of  a 
mortgage  in  the  ordinary  sen^e  in  which  those  terms  are 
employed.  That  the  "  levy  of  an  execution "  had  refer- 
ence only  to  a  levy  on  personal  property,  as  a  levy  upon 
real  estate  is  now  unknown  to  the  law.  Colt  v.  Phoenix 
Fire  Ins.  Co.  54  N.  Y.  596.     1874. 

§  16.  The  taking  of  a  purchase-money  mortgage  can- 
not change  the  character  or  effect  of  the  alienation  or  sale. 
Savage  v.  Howard  Ins.  Co.  52  N.  Y.  502.  1873.  s.  p. 
Miner  v.  Judson,  2  Hun,  441.     1874. 

§  17.  When  policy  provides  that  the  entry  of  a  fore- 
closure of  a  mortgage  or  the  levy  of  an  execution  shall  be 
deemed  an  alienation  of  the  property  and  terminate  the 
insurance,  to  have  such  effect  there  must  be  a  complete 
and  technical  foreclosure  or  such  a  levy  as  divests  the  title. 
Pennebaker  v.  Tomlinson,  1  Coop.  Cb.  598.     1874. 


ALIENATION. 


27 


§  18.     The  transfer  of  the  interest  of  one  partner  to 
gX  another  is  not  such  a  transfer  or  assignment  of  an  interest 
as  will  avoid  the  insurance.     Dermani  v.  Home  Mut.  Ins. 
Co.  26  La.  Ann.  69.     1874. 

<-  §  19.  A  policy  containing  condition  against  aliena- 
tion is  avoided  only  by  a  transfer  whereby  assured  parts 
with  all  his  interest.  A  transfer  by  assured  to  a  firm  of 
which  he  is  and  remains  one  of  the  partners  does  not  avoid 
policy.  Cowan  v.  Iowa  State  Ins.  Co.  40  Iowa,  551. 
1875. 

§  20.  Policy  provided  that  it  should  be  void  in  case 
of  alienation  and  incumbrance.  Also  that  assignment  of 
it  must  be  made  10  days  after  a  sale  of  the  property  and 
that  it  must  be  sent  to  the  office  of  the  company  forthwith 
for  consent,  which  would  then  be  given  to  the  assign- 
ment. Property  having  been  sold  and  consent  of  the  com- 
pany not  having  been  obtained,  suit  being  brought  upon 
the  policy,  Held^  that  company  was  not  absolutely  bound 
to  consent  to  the  assignment,  but  that  condition  became 
operative  only  in  case  it  had  first  consented  to  the  sale  of 
the  property.  Home  Ins.  Co.  v.  Lindsey,  26  Ohio,  348. 
1875. 

^  §  21.  When  policy  insures  a  partnership  the  sale 
of  the  interest  of  one  partner  to  the  other  is  not  such  an 
assignment  or  alienation  as  will  avoid  it.  West  v.  Citi- 
zens Ins.  Co.  27  Ohio,  1.     1875. 

^  §  22.  When  policy  insures  a  partnership  and  one  of 
the  partners  has  retired  having  sold  his  interest  to  the 
other,  the  latter  is  entitled  to  sue  and  recover  the  whole 
amount  of  the  loss.  West  v.  Citizens'  Ins.  Co.  27  Ohio,  1. 
1876. 

§  23.  There  can  be  no  transfer  of  interest,  where  such 
transfer  is  invalid  under  the  statute  of  frauds ;  and  it  is  im- 
material that  the  assured  supposed  that  the  title  was 
changed.  Pitney  v.  Glen's  Falls  Ins.  Co.  65  N.  Y.  6. 
1875. 

§  24.  Policy  provided  that  it  should  ba  void  in  case 
the  property  should  be  sold  or  transferred  or  any  change 


:!■! 


28 


ALIENATION. 


should  take  place  in  title  or  possession,  <fec.  It  was  issued 
to  one  Harlow  Langdon  and  covered  the  dwelling-house 
of  which  he  was  the  owner.  After  issue  of  policy  and  be- 
fore the  fire  he  and  his  wife  conveyed  the  property  to  one 
S?rgent  by  whom  and  his  wife  the  same  was  conveyed  to 
the  wife  of  Langdon.  Held,  that  there  was  such  a  change 
in  the  title  of  the  property  as  precluded  any  recovery  and 
that  this  result  could  not  be  aff^^ted  or  prevented  by  the 
intention  of  the  parties.  Langdon  v.  Minnesota  Farmers' 
Mut.  Fire  Ins.  Co.  22  Minn.  193.     1875. 

§  25.  A  partial  vacancy  cannot  amount  to  a  change 
in  the  title  or  possession.  Bryan  v.  Peabody  Ins.  Co.  8 
W.  Va.  605.     1875. 

§  26.  A  conditional  sale  cannot  be  construed  as  a 
mortgage  to  avoid  eflfect  of  alienation.  Tatham  v.  Com- 
merce  Ins.  Co.  4  Hun,  136.    1875. 

§  27.  Conveyance  and  sale  without  assent  of  com- 
pany avoids  policy.  Smith  v.  Union  Ins.  Co.  120  Mass. 
90.    1876. 

§  28.  Condition  against  transfer  or  alienation  does 
not  extend  to  passing  of  the  title  consequent  on  the  death 
of  the  assured.  Georgia  Home  Ins.  Co.  v.  Kinnier,  28 
Grat.  88.     1876. 

§  29.  Statute  provided  that  if  the  assured  should  fail 
to  notify  companjr  of  any  change  in  the  title  or  ownership, 
and  obtain  the  written  consent  of  the  company,  that  policy 
should  be  void.  After  the  issue  of  the  policy  assured 
mortgaged  the  property  and  did  not  give  notice  or  obtain 
consent.  Held,  to  be  a  breach  of  the  condition.  The 
plaintiff  could  not  recover.  Samo  v.  Gore  District  Mut. 
Fire  Ins.  Co.  26  Up.  Can.  C.  P.  405.    1876. 

J>  80.  Policy  insured  one  Pomeroy  "  loss  if  any  payable 
oote,  mortgagee,  as  interest  may  appear."  After  its 
wsue  Pomeroy  conveyed  his  interest  in  the  premises  to 
Foote,  and  at  same  time  took  back  a  bond  for  reconvey- 
ance  of  the  same  to  him,  his  heirs,  or  assigns,  upon  pay- 
ment of  a  9um  named  which  was  the  amount  due  on  the 


ALIENATION. 


20 


mortgage.  Held^  that  Pomeroy's  deed  effected  a  change 
of  title  within  meaning  of  policy.  Foote  v.  Hartford  Ins. 
Co.  119  Mass.  259.     1876. 

§  3?.  An  executory  contract  of  sale  without  change 
of  possession  does  not  constitute  a  transfer  or  change  of 
title.  Browning  v.  Home  Ins.  Co.  71  N.  Y.  508.  1877. 
Affi'g  6  Daly,  522. 

§  32.  Policy  provided  that  "  when  the  property  has 
been  sold  and  delivered,  or  otherwise  disposed  of,  so  that 
all  interest  or  liability  on  the  part  of  the  assured  has 
ceased,  the  insurance  shall  terminate."  Held,  to  mean  a 
legal  transfer  which  divests  the  party  of  title  or  control 
over  the  property.  Browning  v.  Home  Ins.  Co.  71  N.  Y. 
508.     1877.     Affi'g  6  Daly,  522. 

§  33.  Policy  insured  Langer,  official  assignee,  for  bene- 
fit of  creditors,  another  assignee  of  the  estate  being  ap- 
pointed. Held,  that  the  policy  did  not  vest  by  law  in  the 
new  assignee,  and  that  there  was  a  violation  of  the  condi- 
tion to  the  eflfect  that  if  the  property  was  sold  or  trans- 
ferred, or  if  any  change  should  take  place  in  the  title  or 
possession,  &c.,  that  the  policy  should  be  void,  and  that 
the  interest  of  th  3  assured  expired  upon  the  appointment 
of  the  new  '-  j^nee.  Held  further,  that  in  such  a  case  an 
assignee  ought  to  disclose  his  real  interest.  Elliot  v.  Na- 
tional Ins.  Co.  21  L.  C.  Jurist,  242.     1877. 

§  34.  The  appointment  of  a  receiver  of  partnership 
property  pending  a  suit  for  dissolution  of  the  partnership, 
effects  no  change  in  the  title,  nor  does  the  possession  of 
such  receiver  constitute  a  change  of  possession,  within 
meaning  of  policy.  Keeney  v.  Home  Ins.  Co.  71  N.  Y. 
396.     1877. 

§  35.  A  mortgage  or  deed  of  trust  before  its  fore- 
closure does  not  amount  to  alienation  or  change  of  title. 
Quarrier  v.  Peabody  Ins.  Co.  10  W.  Va.  507.     1877. 

§  36.  The  execution  of  a  mortgage  after  issue  of  pol- 
icy, sale  of  the  property  under  a  power  of  sale  upon  fore- 
closure of  the  mortgage  by  advertisement,  pursuant  to 


30 


ALIENATION. 


..I     ,1 


statute,  and  a  loss  occurring  bftfore  the  period  for  redemp- 
tion has  expired,  does  not  constitute  such  "  a  sale  and 
transfer  or  chansje  in  the  title  as  will  render  void  the  in- 
surance."   Loy  V.  Home  Ins.  Co.  24  Minn.  315.     1877. 

§  37.  After  the  insurance  was  eflfected  the  assured, 
Shultis  and  Neil,  admitted  one  Kribbee  as  a  copartner, 
his  interest  being  one-third.  Subsequently  Shultis  sold 
out  to  his  copartners,  Neil  and  Kribbee,  his  interest  in  the 
partnership  and  the  property  insured,  and  they  gave  him 
a  chattel  mortgage  upon  the  property  insured  to  secure 
the  price  for  which  he  had  sold  his  interest.  Policy  pro- 
vided that  if  the  property  be  sold  or  transferred  or  an^ 
change  should  take  place  in  the  title  or  possession  that  it 
should  be  void,  jffeld,  that  there  was  such  a  change  as 
voided  the  policy.  Card  v.  Phcenix  Ins.  Co.  4  Mo.  App. 
424.     1877. 

§  38.  An  assignment  of  the  policy  to  a  purchaser 
with  consent  of  company's  local  agent  indorsed,  waives  a 
forfeiture  upon  ground  of  alienation.  Amazon  Ins.  Co. 
V.  Wall,  7  Ins.  L.  J.  704.     1878.    Ohio. 

§  39.  Consent  of  company  to  a  sale  and  transfer 
of  property  insured  without  knowledge  of  its  terms  ex- 
tended by  construction  to  include  consent  to  the  execu- 
tion of  a  mortgage  as  part  of  the  transaction.  Farmers' 
Ins.  Co.  V.  Ashton,  7  Ins.  L.  J.  594.     1878.    Ohio. 

§  40.  Sale  of  property  under  decree  in  foreclosure, 
time  for  redemption  having  expired,  is  an  ''alienation," 
notwithstanding  a  misdescription  in  the  mortgage,  and  a 
second  suit  and  decree  therein  prior  to  expiration  of  time 
for  redemption,  correcting  the  mistake.  MoKissick  v.  Mill 
Owners'  Mut.  Ins.  Co.  50  Iowa,  116.     1878. 

§  41.  Policy  contained  provision  that "  if,  without  the 
written  consent  of  the  company  first  had  and  obtained, 
the  said  property  shall  be  sold  or  conveyed,  or  the  interest 
of  the  parties  therein  be  changed  in  any  manner,  whether 
by  act  of  the  parties,  or  by  operation  of  law,"  it  should 
be  void.  Policy  was  issued  for  three  years,  April,  1872. 
Assured  died  November,  1872,  leaving  a  will  devising  all 


ALIBNATION. 


31 


his  estate  to  four  brothers,  three  of  whom,  including  one 
appointed  executor,  were  non-residents.  Fire  occurred 
August,  1874,  previous  to  which  the  executor  had  died. 
Special  administrator  was  appointed,  who  brought  the  ac- 
tion. Held^  that  the  change  of  interest  was  siich  as  to 
avoid  the  policy.  Sherwood  v.  Agricultural  Ins.  Co.  73 
N.  Y.  447.     1878.     Affi'g  10  Hun,  593. 

§  42.  A  sale  in  partition  suit  does  not  change  the  in- 
terest of  assured  until  an  order  of  confirmation  of  the  sale 
has  been  granted  by  the  Court.  Terpenning  v.  Agricul- 
tural Ins.  Co.  14  Hun,  299.     1878. 

§  43.  Execution  and  delivery  of  a  mortgage  with 
power  of  sale  is  such  an  alienation  and  transfer  or  change 
of  title  and  interest  as  will  forfeit  the  policy.  Sossaman 
V.  Pamlico  Ins.  Co.  78  N.  C.  145.     1878. 

§  44.  A  foreclosure  of  a  mortgage,  the  equity  of  re- 
demption having  expired,  effects  a  change  in  the  title. 
Brunswick  Savings  Inst.  v.  Commercial  Union  Ins.  Co.  68 
Me.  313.     1878. 

§  45.  Plaintiffs  while  acting  as  trustees  of  second 
mortgage  bondholders,  and  insured  as  such,  were  in  pos- 
session of  and  operating  a  railroad.  While  thus  engaged 
they  advanced  and  became  personally  liable  for  upwards 
of  $80,000,  for  benefit  of  the  road.  In  a  decree  of  fore- 
closure of  the  first  mortgage  this  amount  was  declared  a 
lien  payable  out  of  first  earnings.  Heldy  that  plaintiffs' 
interest  as  trustees  did  not  include  their  interest  in  the 
amount  of  the  decreed  lien,  and  could  not  prevent  forfeit- 
ure on  account  of  the  sale  in  foreclosure  of  first  mortgage. 
Bishop  V.  Clay  Ins.  Co.  45  Conn.  430.     1878. 

§  46.  The  sale  under  foreclosure  of  a  railroad  mort- 
gage which  has  become  absolute  effects  a  "  change  of  title  " 
avoiding  the  policy.  Bishop  v.  Clay  Ins.  Co.  45  Conn. 
430.     1879. 

§  47.  A  sale  of  property  for  taxes  being  followed  by 
its  redemption  as  provided  by  statute  does  not  effect  such 


i  I 


ififii 
ill 


\<  t 


32 


ALIENATION. 


an  alienation  as  avoids  the  insurance.     Paquet  v.  Citizens' 
Ins.  Co.  4  Quebec  L.  R  230.     1878. 

§  48.  Execution  of  a  mortgage  held  to  be  an  aliena- 
tion within  meaning  of  the  statute,  sec.  39  of  36  Vic.  eh.  44. 
Mechanics'  Society  v.  Gore  District  Ins.  Co.  3d  Tupper, 
161.     1878.    Rev'g  40  Up.  Can.  Q.  B.  220. 

§  49.  A  condition  against  alienation  or  assignment 
does  not  prevent  the  assured  from  executing  a  mortgage. 
Sands  v.  Standard  Ins.  Co.  26  Grant  Ch.  113.     1878. 

§  50.  A  quitclaim  deed,  executed  and  delivered  as 
security,  does  not  constitute  a  breach  of  the  condition 
against  transfer  or  termination  of  interest  of  the  assured. 
Jecko  V.  St.  Louis  F.  &  M.  Ins.  Co.  7  Mo.  App.  308.    1879. 

§  51.  A  void  conveyance  cannot  operate  to  transfer 
interest  of  the  assured.  Jecko  v.  St.  Louis  F.  &  M.  Ins. 
Co.  7  Mo.  App.  308.     1879. 

§  52.  Where  the  contract  is  with  A.  to  insure  his  in- 
terest, no  alienation  by  another  person  of  the  property,  in 
respect  of  which  the  insurance  is  effected,  can  affect  or  prej- 
udice the  rights  of  A.  Humphrey  v.  Hartford  Fire  Ins. 
Co.  15  Blatch.  504.     1879. 

§  53.  Where  a  policy  is  issued  which  covers  personal 
property,  such  as  hay,  grain,  live  stock,  <fec.,  in  a  building, 
and  property  of  the  same  description  is  subsequently 
mortgaged  and  placed  in  the  building  where  the  risk  will 
attach  to  it  under  the  general  language  used,  and  the  in- 
sured claims  payment  for  it  as  such  mortgaged  property, 
as  being  covered  by  the  policy,  then  the  subsequent  chat- 
tel mortgage  should  be  deemed  a  breach  of  the  condition 
in  the  policy  providing  that  if  any  change  should  take 
place  in  the  title  without  consent  of  the  company  that  it 
should  be  void ;  but  if  he  made  no  claim  for  such  prop- 
erty, the  insurance  upon  the  unincumbered  property 
might  not  be  effected  by  the  fact  that  the  mortgaged 
property  was  in  the  building  at  the  same  time,  and  de- 
stroyed with  it.  Schumitsch  v.  American  Ins.  Co.  48 
Wis.  26.    1879. 


ALIENATION. 


33 


§  54.  Under  the  Georgia  Code  the  execution  and  de- 
livery of  a  trust  deed  as  security  for  a  debt,  and  providing 
for  a  reconveyance  upon  its  payment,  does  not  amount  to 
an  alienation,  but  creates  a  lien  only,  which  does  not  void 
the  policy.  Virginia  Fire  Ins.  Co.  v.  Feagin,  62  Ga.  515. 
1879. 

§  55.  The  execution  of  a  mortgage  is  not  a  sale, 
transfer,  or  change  of  title  which  avoids  the  policy  By- 
ers  V.  Farmers'  Ins.  Co.  9  Ins.  L.  J.  743.     1880.     Ohio. 

§  56.  Conveyance  by  deed  absolute  in  form  by  owner 
and  assured  to  mortgagee  to  whom  loss  is  payable,  in  the 
absence  of  fraud,  and  no  proof  of  any  facts  to  control  the 
effect  of  the  deed,  avoids  the  policy  under  clause  rendering 
it  void  "  if  the  property  insured  should  be  sold."  Dailey 
V.  Westchester  Fire  Ins.  Co.  10  Ins.  L.  J.  383.  1880. 
Mass. 

§  57.  The  execution  and  delivery  of  a  mortgage  does 
not  constitute  a  sale,  transfer  or  change  of  title  which 
avoids  the  policy.     Byers  v.  Ins.  Co.  35  Ohio,  606.    1880. 

§  58.  An  invalid  sale  of  property  insured  under  a 
mortgage  is  not  such  an  alienation  as  will  avoid  the  insur- 
ance. Scammon  v.  Commercial  Union  Ins.  Co.  6  Brad- 
well,  551.     1880. 

§  59.     Letting  of  house  to  tenants  is  not  a  change  of 
title  or  possession.    Rumsey  v.  Phcenix  Ins.  Co.  1 7  Blatch. 
527.     1880. 

§  60.  Policy  was  made  payable  to  plaintiff  as  mort- 
gagee. It  contained  a  provision  that  it  should  be  void  if 
foreclosure  proceedings  were  commenced  against  the  as- 
sured. Plaintiff  obtained  a  judgment  of  foreclosure  of  the 
mortgage,  and  caused  premises  to  be  advertised  for  sale  a 
few  days  before  the  fire.  Held,  that  there  was  a  breach 
of  the  condition.  That  company's  assent  to  the  mortgage 
could  not  be  extended  by  construction  so  as  to  include 
the  foreclosure  proceedings  as  a  necessary  incident  of  the 
mortgage.  Titus  v.  Glen^s  Falls  Ins.  Co.  81  N.  Y.  410. 
1880. 

Vol.  II.— 3 


it  ! 


34 


ALIENATION. 


§  61.  The  giving  of  a  chattel  mortgage  is  a  sale  or 
incumbrance  effecting  a  change  of  interest.  Dacey  v. 
Agricultural  Ins.  Co.  21  Hun,  83.     1880. 

§  63.  Policy  insured  P.  &  E.,  partners.  After  its 
issue  the  interest  of  E.  was  without  the  knowledge  or  con- 
sent of  the  company  assigned  to  plaintiff.  The  local  agent 
■of  defendant  was  shortly  thereafter  advised  of  the  assign- 
ment, and  promised  to  obtain  pioper  indorsement  upon 
the  policy.  The  policy  contained  a  provision  that  if  the 
property  insured  was  conveyed,  or  the  policy  assigned 
without  consent  of  the  company  indorsed  upon  it,  it 
should  be  void,  and  tiiat  "no  agent  is  empowered  to 
waive  any  of  the  conditions  of  this  policy  either  before  or 
after  loss  without  special  authority  in  writing  from  the 
company."  Ileldy  that  the  transfer  avoided  the  insurance 
as  to  the  interest  transferred,  and  that  the  agent  did  not 
waive  the  condition  by  his  promise  to  obtain  consent,  and 
that  the  receipt  of  the  premium  after  the  transfer,  with 
knowledge  of  the  agent,  does  not  create  an  estoppel 
Shuggart  v.  Lycoming  Fire  Ins.  Co.  Sf)  Cal.  408.     1880. 

§  63.  Policy  provided  that  when  any  house  or  build- 
ing insured  should  be  alienated  by  sale  or  otherwise,  it 
ishonld  become  immediately  void.  It  was  issued  to  ten- 
ants in  common.  During  the  term  of  the  policy  one  sold 
his  interest  in  the  property  insured  to  his  co-tenant,  the 
plaintiff,  who,  at  time  of  the  fire,  was  the  sole  owner. 
Held,  that  the  insurance  was  not  thereby  avoided;  that 
the  alienation  contemplated  by  the  condition  was  a  sale 
by  the  insured  to  a  party  nut  insured,  and  that  any  trans- 
fer of  interest  between  the  parties  insured  is  not  an  alien- 
ation within  the  meaning  of  the  condition.  Lockwood  v. 
Middlesex  Mut.  Ins.  Co.  47  Conn.  553.     1880. 

§  64.  A  notice  filed  in  pursuance  of  the  mechanics' 
lien  law,  does  not  eft'ect  any  change  of  interest  in  the 

Sroperty  insured.    Green  v.  Homestead  Fire  Ins.  Co.  82 
r.  Y.  517.     1880.    Afli'g  17  Hun,  467. 

§  6.5.  Policy  provided  that  it  should  be  void  if  prop- 
erty insured  should  •*  be  sold  or  conveyed  in  whole  or  m 


ALIBNATION. 


35 


part."  Assured  conveyed  the  whole  by  warranty  deed, 
with  release  of  dower  to  one  Davis,  who,  at  the  same  time 
and  as  part  of  the  same  transaction,  conveyed  it  to  the 
wife  of  the  assured.  Held,  that  policy  was  thereby 
avoided,  Oakes  v.  Manufacturers'  Ins.  Co.  10  Ins.  L.  J. 
346.     1880.     Mass. 

8  66.  A  conveyance  by  deed  valid  as  between  the 
parties  is  such  a  change  in  the  title  as  to  render  the  policy 
void  under  usual  condition  against  sale,  transfer  or  change 
in  title.  Baldwin  v.  Phoenix  Ins.  Co.  10  Ins.  L.  J.  32. 
1881.  N.  H.  And  see  Id.  v.  Hartford  Ins.  Co.  10  Ins.  L. 
J.  433.     1881.    N.  H. 

§  67.  Policy  provided  that  any  "  sale,  transfer  or  change 
of  title  "  should  render  it  void.  Assured  conveyed  the  fee 
to  one  who  reconveyed  to  him  a  life  right  to  use  and  oc- 
cupy. Ileld^  that  policy  was  rendered  void.  Farmers' 
Ins.  Co.  V.  Archer,  10  Ins.  L.  J.  371.     1881.     Ohio. 

§  68.  When  by  express  terms  of  the  policy  it  is  ren- 
dered  void  if  property  is  sold  or  transferred,  or  policy  as- 
signed without  consent  of  company  indorsed,  it  is  not 
enough  that  notice  of  the  transfer  or  of  the  assignment  be 
given  to  the  company.  Contract  requiring  consent,  it 
must  be  obtained  and  indorsed  on  policy.  Duty  of  pro- 
curing these  things  to  be  done  rests  with  the  assured.  If 
he  fails  in  his  efforts  or  neglects  to  comply  with  the  whole 
of  the  requirements  contract  is  at  an  end  by  force  of  its 
own  terms.  No  act  of  forfeiture  is  necessary  to  accomplish 
this  result,  nor  is  the  omission  of  such  an  act  any  evidence 
of  a  waiver  of  company's  rights.  A  waiver  to  be  effectual 
must  be  intentional.  Girard  Fire  Ins.  Co.  v.  Hebard,  10 
Ins.  L.  J.  425.     1881.     Pa. 

See  Agent,  §  35.  Assignment,  4,  9,  18.  Entirety  and  Divisibility  of 
Policy,  7,  10.  Evidence,  13,  63.  Insurable  Interest,  31,  84,  35.  Interest  in 
Policy,  35.  Mutual  Company,  61,  74,  77,  &7,  145.  Other  Insurance,  48. 
Waiver,  4,  8,  16,  30. 


m 


ALTERATION. 

§  1.  Policy  insured  a  stone  building  with  a  stone  ad- 
dition on  one  side,  and  a  frame  addition  attached  to  the 
stone  building  on  the  other  side.  Assured,  without  con- 
sent, cut  off  eighteen  feet  of  the  frame  addition,  next  the 
stone  building,  and  placed  same  at  rear  end  of  the  frame 
addition,  thereby  detaching  the  frame  addition  from  the 
stone  building.  It  was  admitted  that  the  risk  was  not 
thereby  increased.  There  was  no  provision  in  the  policy 
against  alterations,  or  requiring  consent  to  make  improve- 
ments. Held^  that  the  alteration  did  not  avoid  the  in- 
surance. Dorn  V.  Germania  Ins.  Co.  5  Ins.  L,  J.  183. 
1878.     U.  S.  Circuit,  Ohio. 

§  2.  If  policy  provides  that  an  alteration  of  the  use 
or  occupation  of  the  property  shall  avoid  it,  it  is  necessary 
to  aver  and  prove  that  the  risk  is  increased.  Johnston  v. 
Canada  Farmers'  Ins.  Co.  28  Up.  Can.  C.  P.  211.     1877. 

§  3.  It  appeared  that  plaintiffs  business  when  he 
first  insured  was  carried  on  in  a  store  having  two  doors  on 
the  street,  numbers  319  and  317,  and  adjoining  a  similar 
store  with  the  number  315.  During  the  first  year  the 
plaintiff  rented  the  upper  part  of  31 5  and  made  a  do-  be- 
tween it  and  numbers  319  and  317,  moving  ,ieater 
pai-t  of  the  goods  to  the  other  side  of  the  wall.  le  closed 
the  communication  to  the  lower  store  315,  so  tluu  Ihe  d'  or 
319  was  the  only  way  that  access  to  the  goods  could  be  ^ad. 
At  the  expiration  of  the  year  the  agent  of  the  company 
visited  the  premises,  examined  the  stock  in  the  new  store- 
room, and  consented  to  a  renewal  for  another  year.  Held^ 
that  there  was  not  such  a  variation  of  the  original  con- 
tract as  to  constitute  a  new  agreement,  but  only  a  slight 
change  in  the  old  consented  to  by  the  parties,  and  that  the 
question  of  consent  was  properly  left  to  the  jury,  and 
they  having  found  in  favor  of  the  plaintiff  that  he  was  en- 
titled to  recover.  EoUand  v.  Citizens'  Ins.  Co.  21  L.  C. 
Jurist,  262.     1877. 

See  Estoppel,  §  5.    Increase  of  Risk,  2.    Uee  and  Occupation,  12,  15, 


APPLICATION. 

§  1.  The  addition  to  an  application  made  without 
knowledge  of  assured,  by  secretary  of  company,  bind 
the  former  by  his  retention  of  the  policy  without  objec- 
tion. Lattoraus  v.  Farmers'  Mut.  Ins.  Co.  3  Houston, 
404.     1873. 

§  2.  Assured  cannot  escape  responsibility  for  state 
ment  of  facts  which  he  inserts  himself  in  the  application 
or  permits  an  agent  to  insert  as  his  upon  which  he  is  just 
as  well  informed  as  the  agent  himselfl  American  Ins.  Co. 
V.  Gilbert,  27  Mich.  420.     1873. 

§  3.  When  a  question  in  a  written  application  is  un- 
answered, and  the  risk  is  accepted  upon  such  application, 
it  is  a  waiver  of  any  notice  which  the  truthful  answer  to 
the  interrogatory  would  have  disclosed.  Dayton  Ins.  Co. 
V.  Kelley,  24  Ohio,  345.     1 873. 

§  4.  Statement  in  application  that  building  is  iso- 
lated, which  it  was  in  its  ordinary  sense,  cannot  be  quali- 
fied or  limited  by  a  note  below  the  signatures  of  the  as- 
sured explaining  that  isolated  means  100  feet  from  any 
building.  Pacaud  v.  Queen  Ins.  Co.  21  L.  C.  Jurist,  111. 
1876. 

§  5.  Assured  is  not  bound  by  a  written  application 
made  part  of  the  policy  and  signed  by  agent,  without 
proof  that  he  executed  it,  authorized  it  to  be  made,  or  rati- 
fed  it  after  it  was  executed  with  knowledge  of  the  facta 
Lycoming  Ins.  Co.  v.  Jackson,  83  111.  302.     1876. 

§  6.  If  company  acts  upon  an  application  with  any 
question  therein  unanswered  it  waives  information  in  re- 
spect thereto,  and  assured  cannot  be  charged  with  conceal- 
ment. Sinclair  v.  Canadian  Mutual  Ins.  Co.  40  Up.  Can. 
Q.  B.  206.    1876. 

§  7.  In  making  inquiries  as  to  particular  facts,  com- 
pany waives  information  in  regard  to  others.  Browning 
v.  Home  Ins.  Co.  71  N.  Y.  508.     1877. 


38 


APPLICATION. 


§  8.  Company  having  issued  its  policy  upon  a  writ- 
ten application  containing  a  blank  inquiry  as  to  value  un- 
answered, cannot  afterwards  avail  itself  of  an  oral  state- 
ment as  to  value  made  at  the  same  time,  and  claim  it  to 
be  fraudulent.  Bardwell  v.  Conway  Ins.  Co.  122  Mass. 
90.     1877. 

§  9.  When  assured  eflfects  a  policy  through  the 
agency  of  his  own  son  who  signs  the  assured's  name  to 
the  application  and  whose  duty  it  was  before  doing  so  to 
see  that  the  matters  therein  stated  were  correct,  the  as- 
sured is  bound  by  such  applicaiion  notwithstanding  his 
inability  to  read  and  write.  Chatillon  v.  Canadian  Mut. 
Fire  Ins.  Co.  27  Up.  Can.  C.  P.  450.     1877. 

§  10.  A  memorandum  annexed  to  the  application 
and  delivered  to  agent  at  the  same  time  by  the  assured, 
stating  particulars  of  other  existing  insurance,  must  be  con- 
sidered and  taken  as  a  part  of  it.  Parsons  v.  Queen  Ins. 
Co.  43  Up.  Can.  Q.  B.  271.     1878. 

§  11.  Policy  contained  clause  providing  that  if  an 
agent  should  fill  up  an  application  he  sb-^uld  be  consid- 
ered as  acting  for  the  applicant  and  not  for  the  company ; 
"but  company  would  be  responsible  for  all  surveys  made 
by  their  agent  personally."  After  inspection  of  the 
risk  the  agent,  with  the  assistance  of  a  clerk  selected  by 
himself,  filled  an  application  to  which  it  appeared  the  as- 
sured objected  as  not  being  correct,  upon  which  the  agent 
promised  that  he  would  go  again  to  the  premises  and 
measure  and  alter  the  paper  to  suit  such  measurements. 
The  agent  notwithstanding  adhered  to  the  description  and 
diagram  already  inserted  by  him  in  the  application.  Ileld^ 
that  the  agent  must  be  deemed  the  agent  of  the  company 
so  far  as  the  application  was  concerned,  and  that  the  com- 
pany was  estopped  from  disputing  its  correctness.  Hast- 
ings Mutual  Fire  Ins.  Co.  v.  Shannon,  2  Can.  Sup.  394. 
1878. 


§  12.  Proof  of  assured's  signature  to  an  application 
creates  a  presumption  that  Le  knew  the  contents.  Hart- 
ford Ins.  Co.  V.  Gray,  8  Ins.  L.  J.  611.     1879.     111. 


APPLICATION. 


3d 


§  1 3.  The  fact  that  an  application  is  written  in  pencil 
upon  the  blank  of  another  company  does  not  prevent  its 
effect  as  a  warranty  when  its  identification  is  established 
by  the  number  indorsed  upon  it  and  by  the  property  pro- 
posed to  be  insured.  City  Ins.  Co.  v.  Bricker,  91  Pa,  488. 
1879. 

§  14.  When  policy  provides  that  if  building  insured 
stands  upon  leased  ground  it  must  be  so  represented  and 
expressed  in  the  policy,  a  breach  of  such  condition  avoids 
the  insurance,  notwithstanding  an  omission  to  inquire  as 
to  such  facts  in  the  application.  Ross  v.  Citizens'  Ins.  Co. 
SPugsley  «fcB.  N.  B.  126.     1879. 

§  15.  Although  assured  cannot  be  prejudiced  by 
anything  AViOngfnlly  written  in  his  application  by  compa- 
ny's agent,  he  is  bound  by  acceptance  and  retention  of  the 
policy  a  reasonable  time  without  oVgection.  When  facts 
are  clearly  established,  what  is  a  reasonable  time  is  a 
question  of  law  which  must  be  determined  by  the  court. 
Swan  v.  Watertown  Fire  Ins.  Co.  10  Ins.  L.  J.  392.  1880. 
Pa. 

§  10.  Application  referred  to  and  made  part  of  the 
policy  must  be  treated  together  as  constituting  the  com- 
pact, as  if  both  were  embodied  in  one  paper.  Byers  v. 
lus.  Co.  35  Ohio,  006.     1880. 

Sec  A  pent,  §  0,  40,  49,  51,  71,  77,  79,  81,  90,  101,  103.  Consummation  of 
Contmct,  liJ.  Encunibr.ince,  6.  Estoppel,  2'^,  23.  Evidence,  17,  43,  87.  In- 
Burable  Interest,  38.  Mutual  Company,  39,  49.  Over  Valuation,  4.  Plead- 
ing and  Practice,  a5,  28,  31.  Reformation,  11.  Title,  19,  37,  42,  40,  51,  56. 
Use  and  Occupation,  1 1.  Waiver,  42,  Warranty  and  Representation,  22,  23 , 
40,  45,  53,  84,  70,  84,  90,  93,  97,  107. 


ARBITRATION  AND  APPRAISEMENT. 

§  1.  Where  policy  provides  for  furnishing  of  inven- 
tory and  an  appraisal  of  the  damages,  the  furnishing  of 
the  former  by  the  assured  is  all  that  he  is  required  to  do, 
unless  the  company  offers  to  have  appraisers  appointed. 
Commercial  Ins.  Co.  v.  Ptobinson,  64  111.  265.     1872. 

§  2.  Submission  to  and  award  by  appraisers  is  not 
binding  unless  made  so  by  agreement.  Patterson  v.  Tri- 
umph Ins.  Co.  64  Me.  500.     1874. 

§  3.  Condition  providing  for  arbitration  cannot  op- 
erate to  deprive  assured  of  his  right  of  action,  unless 
clearly  made  a  condition  precedent  to  the  existence  of 
such  right.  Liv.  L.  and  G.  Ins.  Co.  v.  Creightou,  51  Ga. 
«5.     1874. 

§  4.  In  order  for  an  insurance  company  to  avail  itself 
of  the  arbitration  clause  of  a  policy,  it  must  show  that 
they  admitted  the  validity  of  the  policy,  and  that  the  only 
question  is  as  to  the  extent  of  the  loss.  Parties  may 
agree  that  when  the  dispute  is  limited  to  the  extent  of  the 
danaage  and  question  of  value,  that  it  shall  be  determined 
by  appraisement.  Such  an  agreement,  like  any  other 
agreement  of  reference,  is  revocable,  though  the  party 
may  subject  himself  to  an  action  for  damages  for  the  revo- 
cation. Such  an  agreement  does  not  operate  to  oust  the 
courts  of  jurisdiction.  Mentz  v.  Armenia  Fire  Ins.  Co.  79 
Pa.  478.     1875. 

§  5.  The  arbitration  clause  held  a  barrier  to  recovery 
at  law  unless  there  is  proved  a  demand  for  an  arbitration 
by  the  assured,  and  a  refusal  or  neglect  or  an  express 
waiver  by  the  company.  Flaherty  v.  Germania  Ins.  Co. 
7  Ins.  L.  J.  226.     1875.    Pa. 

8  6.  Policy  provided  that  in  case  of  damage  the 
goods  should  be  forthwith  put  in  as  good  condition  as  the 
case  would  allow,  the  assuied  assorting  and  arranging  the 
various  articles,  separating  the  damaged  from  the  undam- 


ARBITRATION  AND  APPRAISEMENT. 


41 


aged  goods,  then  list  or  inventory  of  the  whole  to  be 
made,  naming  qualities,  quantities,  etc.,  after  which  the 
amount  of  damage  should  be  ascertained  by  examination 
and  appraisal,  the  report  of  the  appraisement  to  be  in 
writing.  Held^  that  these  provisions  applied  only  where 
claim  IS  made  for  goods  partially  damaged  or  destroyed, 
and  that  they  did  not  apply  where  a  total  loss  only  was 
claimed.  Williamson  v.  Iland-in-Hand  Mut.  Ins.  Co.  26 
Up.  Can.  C.  P.  266.     1876. 

§  T.  If  policy  merely  contains  an  agreement  to  refer 
a  matter  upon  which  liability  arises  to  arbitration,  it  does 
not  take  away  right  of  action.  But  if  the  agreement  be, 
not  simply  to  pay  a  sum  of  money,  or  to  do  an  act,  but  to 
pay  such  sum  of  money,  or  do  such  an  act,  as  a  third  per- 
son shall  ascertain  or  direct,  or  to  pay  a  sum  of  money  or 
do  an  act  in  a  certain  event^  such,  for  instance,  as  an  arbi- 
trator arriving  at  a  certain  conclusion,  in  any  of  these  cases 
no  cause  of  action  arises,  unless,  in  the  one  case,  the  third 
person  has  so  ascertained  or  directed,  or,  in  the  other,  the 
stipulated  event  has  happened.  Gorman  v.  Iland-in-Hand 
ins.  Co.  Irish  Rep.  11  C.  L.  224.     1877. 

§  8.  When  statute  provides  that  the  amount  written 
in  tlie  policy  is  conclusive  upon  the  question  of  value  and 
the  only  measure  of  damages,  stipulation  in  policy  as  to 
arbitration  is  inoperative.  Thompson  v.  St.  Louis  Ins.  Co. 
43  Wis.  459.  1877.  Thompson  v.  Citizens'  Ins.  Co.  45 
Wis.  388.     1878. 

§  9.  Policy  provided  that  if  differences  should  arise 
after  proofs  were  received,  that  at  written  request  of  either 
party  matter  should  be  submitted  to  arbitrators  whose 
award  should  ])e  binding  as  to  amount,  but  not  as  to  liabil- 
ity, and  also  that  no  action  should  be  sustainable  until  after 
such  award  should  be  ol>tained.  Held^  that  the  condition 
did  not  suspend  assured's  right  of  action.  That  it  was 
merely  collateral  and  not  a  condition  precedent.  Schol- 
lenberger  v.  Phoenix  Ins.  Co.  7  Ins.  L.  J.  697.  1878.  U. 
S.  Circuit,  Pa. 

^  10.  Company  waives  right  to  arbitration  by  omit- 
ting to  make  request  as  provided  in  the  policy  during  the 


m 


ARBITRATION  AND  APPRAISEMENT. 


I! 


i 


'-I 


sixty  days  preceding  time  when  loss  becomes  due  and 
payable.  Gibbs  v.  Continental  Ins.  Co.  13  Hun,  611. 
1878.  And  same  when  company  insists  it  is  not  liable  for 
any  loss.    Id. 

§  11.  When  company  denies  all  liability  the  arbitra- 
tion clause  is  not  operative.  Lasher  v.  Northwestern 
Nat.  Ins.  Co.  18  Hun,  98.     1879. 

§  12.  An  award  made  in  the  absence  of  a  chosen  ar- 
bitrator, without  notice  and  consent,  has  no  validity. 
Hills  V.  Home  Ins.  Co.  9  Ins.  L.  J.  814.     1879.     Mass. 

§  13.  Assured  cannot  be  relieved  from  award  of  arbi- 
trators, even  although  he  was  induced  by  a  mistaken  as- 
sertion of  company's  agent  in  regard  to  condition  in  poli- 
cy to  consent  to  arbitration,  he  having  the  opportunity  of 
examining  the  policy  before  signing  the  submission. 
Wheeler  v.  Watertown  Fire  Ins.  Co.  10  Ins.  L.  J.  354. 
1880.     Mass. 

§  14.  When  policy  provides  that  an  arbitration  shall 
be  had  upon  the  written  request  of  either  party,  it  is 
necessary  to  aver  and  prove  such  written  request  to 
make  condition  operative.  Wallace  v.  German  American 
Ins.  Co.  1  McCrary,  33.5.     1880. 

§  15.  Policy  provided  that  "damage  to  property  not 
totally  destroyed,  unless  agreed  upon,  shall  be  appraised 
by  disinterested  and  competent  persons  mutually  agreed 
upon  by  the  parties ;  when  personal  property  is  damaged, 
assured  shall  make  an  inventory  thereof,  and  upon  each 
article  the  damages  shall  be  separately  appi'aised,  and  the 
report  of  the  apjn'aisers  shall  form  part  of  the  proofs,  and 
until  such  proof  and  cei'tificates  are  produced  loss  shall 
not  be  payable."  The  insurance  was  upon  a  building, 
which  the  jury  found  was  totally  destroyed.  Company 
insisted  that  an  appraisal  was  a  condition  precedent  to 
amount  being  due.  Jlehl,  doubtful  whether  condition 
was  not  void  for  uncertainty,  but  that  if  it  was  valid,  it 
did  not  apply  to  a  case  where  the  dispute  was  as  to 
whether  loss  wuh  partial  or  total,  and  that  so  far  as  an  ap- 
praisal was  made  a  condition  precedent  by  the  condition 


! 


ASSIGNMENT. 


43 


it  bad  reference  only  to  personal  property.     Williai  jis  v. 
Hartford  Ins.  Co.  54  Cal.  442.     1880. 

§  16.  Policy  provided  that  in  case  diflterences  shall 
arise  touching  any  loss  or  damage  after  proof  has  been  re- 
ceived in  due  form,  the  matter  shall,  at  written  request  of 
either  party,  be  submitted  to  impartial  arbitrators  whose 
award  in  writing  shall  be  binding  as  to  the  amount  of 
such  loss  or  damage,  but  shall  not  decide  the  liability  of 
the  company  under  this  policy.  It  is  furthermore  ex- 
pressly agreed  that  no  suit  shall  be  sustainable  in  any 
court  of  law  or  equity  until  after  award  shall  have  been 
obtained  fixing  the  amount  of  such  claim  in  the  manner 
above  provided.  Held^  that  the  condition  as  to  arbitra- 
tion was  not  a  condition  precedent  but  collateral  to  the 
agreement  to  pay.  Mark  v.  National  Fire  Ins.  Co.  24 
Hun,  565.     1881. 

See  Agent,  §  3.    By-Laws  and  Conditions,  8,  15.    Construction,  16.  Proofs 
of  Losd,  48,  05.     Questions  for  Court  and  Jury,  10.    Waiver,  29. 


ASSIGNMENT. 

§  1.  An  invalid  assignment  of  the  policy  cannot  de- 
feat the  insurance.  Crozier  v.  Phoenix  Ins.  Co.  2  llannay, 
N.B.  200.     1870. 

§  2.  Assignee  takes  policy  subject  to  its  conditions, 
and  if  his  assignor  has  lost  all  right  of  recovery,  he  ac- 
quires no  rights.  K"»me  Mut.  Ins.  Co.  v.  Ilauslein,  GO  111. 
521.  1871.  8.  p.  Burger  v.  Farmer's  Mut.  Co.  71  Pa. 
422.  1 872.  Smith  v.  Niagara  Dist.  Ins.  Co.  38  Up.  Can. 
Q.  B.  570.  1876.  Kanaday  V.  Gore  Dist  Ins.  Co.  44  Up. 
Can.  Q.B.  261.     1879. 

§  3.  Under  Iowa  statute  (Rev.  Sec.  2757)  policy 
may  be  assigned  although  prohibited  by  condition  in  it. 
Mershon  v.  National  Ins.  Co.  34  Iowa,  87.     1871. 


u 


ASSIGNMENT. 


-   1 


§4. 


A  sale  of  the  property  cannot  operate  as  a  trans- 
fer of  the  policy  by  law.  Forgie  v.  Royal  Ins.  Co.  16  L. 
C.  Jurist,  31     1871. 

§  5.  When  condition  prohibits  an  assignment  of  the 
policy  without  consent,  it  is  rendered  void  by  such  assign- 
ment, although  it  may  have  been  made  merely  as  and  for 
the  purpose  of  collateral  security,  and  the  assured  cannot 
prevent  such  an  effect  by  payment  of  the  debt  after 
the  fire.  Ferree  v.  Oxford  Fire  Ins.  Co.  8  Phil.  Rep.  512. 
1871. 

§  6.  Company  remains  liable  to  assignee  of  claim  if 
it  pays  to  assured  after  notice  of  the  assignment.  Hall 
V.  Dorchester  Mut.  Fire  Ins.  Co.  Ill  Mass.  53.     1872. 

§  7.  Assignee  of  policy  after  a  loss  takes  it  sub- 
ject to  all  equities  and  defenses  which  attach  to  it  in 
hands  of  assured.  Semhle  otherwise  where  company  as- 
sents to  the  assignment,  or  by  its  act  or  conduct  induces 
the  assignee  to  take  the  same  under  a  belief  that  no 
claim  exists  against  the  assured.  Johnston  v.  Phoenix 
Ins.  Co.  39  Md.  233.     1873. 

§  8.  An  assignment  of  policy  for  less  than  the  claim 
under  it  obtained  by  representative  of  company  by  false 
representations  of  its  ability  to  pay  amount  due,  will  be 
decreed  void  in  equity.  Derrick  v.  Lamar  Ins.  Co.  74 
111.  404.  1874.  8.  p.  Burnham  v.  Lamar  Ins.  Co.  79  111. 
160.     1875. 


§  9.     Entry  in   policy 


register 


of  company  "trans- 


ferred to  William  D.  Griswold,"  made  at  the  instance  of 
the  assured,  is  effectual  to  vest  a  right  to  the  insurance 
in  such  party  on  the  ground  that  the  defendant  accepted 
Griswold  as  the  insured  instead  of  the  original  assure<l. 
Griswold  v.  American  Central  Ins.  Co.  70  Mo.  654.     1874. 

ij  10.  Assured  may  assign  his  claim  after  a  fire  to  a 
creditor  to  extent  of  the  debt.  Daniels  v.  Meinhard,  53 
Ga.  359.     1874. 


ASSIGNMENT. 


4S 


§  1 1.  Policy  cannot  prohibit  an  assignment  of  a  claim 
after  loss.  Pennebaker  v.  Tomlinson,  1  Coop.  Ch.  598. 
1874. 

§  12.  An  assignment  of  all  personal  property  of 
any  nature  or  kind  whatever,  except  books  and  book 
accounts,  which  belong  to  the  insured,  cannot  operate  to 
convey  any  right  and  interest  of  the  insured  in  a  pol- 
icy of  insurance  to  the  assignee.  White  v.  Robbins,  21 
Minn.  370.     1875. 

§  13.  The  insertion  of  a  clause  in  policy  making  loss 
payable  to  a  third  party  does  not  operate  as  an  assign- 
ment of  it.  Martin  v.  Franklin  Fire  Ins.  Co.  9  Vroom  N. 
J.  L.  R.  140.     1875. 

§  14.  Policy  covered  a  certain  amount  on  dwelling 
house  and  on  furniture  and  clothing  therein.  Property 
was  sold  by  the  assured  to  another  and  the  policy  as- 
signed to  the  purchaser  with  consent  of  the  company. 
The  furaiture  and  clothing  belonging  to  the  assured 
were  not  sold,  but  were  removed.  The  purchaser  put  in 
the  house  his  own  furniture  and  clothing  which  was 
burned.  Held^  that  by  the  consent  of  the  company  to 
the  assignment  of  the  policy  to  the  purchaser  there  was  a 
new  and  original  contract  to  indemnify  him  according  to 
the  terms  of  the  policy  and  that  the  company  was  liable 
for  the  loss  on  furniture  and  clothing  of  the  purchaser  and 
assignee.     Cummings  v.  Ins.  Co.  55  N.  II.  457.     1875. 

§  15.  Policy  covering  personal  property  and  building 
was  assigned  with  consent  of  the  company  to  a  mortgagee 
who  held  a  mortgage  upon  the  land,  but  had  no  claim 
whatever  to  the  chattels  insured.  After  the  fire  the  mort- 
gagee re-assigned  the  policy  and  claim  thereunder  to  the 
assured  and  plaintiff,  first  having  received  the  amount  of 
damage  upon  the  building  insured.  Held^  that  the  mort- 
gagee had  nothing  to  assign  in  reference  to  the  personal 
property,  and  that  therefore  plaintiff  could  not  recover. 
Hazzard  v.  Canada  Agricultural  Ins.  Co.  39  Up.  Can.  Q.  B. 
419.     1876. 


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ASSIQNMBNT. 


§  16.  Assignee  of  insured  property,  who  becomes  bv 
consent  assignee  of  the  policy  and  applies  for  a  renewal, 
is  bound  only  by  correctness  of  the  original  application 
go  far  as  it  is  applicable  to  the  circumstances  existing  at 
the  time  of  the  renewal.  The  undertaking  or  agreement 
on  his  part  is  simply  that  the  facts  stated  in  the  original 
application  are  true  at  the  time  of  the  renewal.  Chap- 
man  v.  Gore  District  Mut.  Ins.  Co.  26  Up.  Can.  C.  P.  89. 
1876. 

§  17.  When  the  loss  is  made  payable  to  a  third  party, 
as  interest  may  appear,  there  is  no  necessity  for  an  assign- 
ment of  the  policy  so  long  as  no  new  party  is  introduced, 
and  the  only  change  is  one  made  by  an  arrangement  be- 
tween the  assured  and  the  payee.  Burbank  v.  McChier, 
54  N.  H.  339.     1877. 

§  18.  The  assignment  or  release  of  the  interest  of  one 
partner  to  another  is  neither  an  assignment  of  the  policy 
or  transfer  of  the  property  as  will  avoid  the  insurance. 
Texas  Ins.  Co.  v.  Cohen,  47  Tex.  406.     1877. 

§  19.  Semble  policy  cannot  be  assigned  after  a  par- 
tial loss.  Kerr  v.  Hastings  Mutual  Ins.  Co.  41  Up.  Can. 
Q.  B.  217.    1877. 

§  20.  A  provision  prohibiting  assignment  of  the  poli- 
cy before  a  loss,  is  valid  and  will  be  enforced.  StoUe  v. 
^tna  Ins.  Co.  10  W.  Va.  546.     1877. 

§  21.  If  an  assignment  agreed  to  be  made  before  a 
loss  is  not  actually  delivered  until  after  it,  it  becomes  op- 
erative only  from  the  time  of  such  delivery,  and  then  as 
an  assignment  of  a  money  demand  against  the  company. 
Watertown  Ins  Co.  v.  Grover  &  Baker  Sewing  Machine 
Co.  41  Mich.  131.     1879. 

§  22.  If,  when  policy  is  issued,  the  assured  has  no  in- 
surable interest,  he  can  confer  no  rights  upon  an  assignee 
by  an  assignment.  McCluakey  v.  Providence  Ins.  Co.  126 
Mass.  306.    1879. 


ASSIGNMENT. 


47 


§  23.  Assignment  of  policy  witliout  written  consent 
as  required  by  its  terms,  renders  it  void.  Waterhouse  v. 
Gloucester  Fire  Ins.  Co.  69  Me.  409.     1879. 

8  24.  Policies  of  fire  insurance  are  not  assignable  at 
law  without  the  consent  of  the  insurer,  nor  m  equity  can 
an  assignment  be  ever  made  to  enure  to  the  benefit  of  the 
assignee  where  there  is  violation  of  any  condition  of  the 
policy  by  such  assignment.  Jecko  v.  St.  Louis  F.  &  M. 
Ins.  Co.  7  Mo.  App.  308.     1879. 

§  25.  Assured  who  has  parted  with  all  interest  in  the 
property  insured  can  transfer  no  rights  under  the  policy 
by  assignment  after  the  loss.  Jecko  v.  St.  Louis  F.  &  M. 
Ins.  Co.  7  Mo.  App.  308.     1879. 

§  26.  Assignment  after  a  loss  has  occurred  is  not  an 
assignment  of  the  policy,  but  of  the  claim  for  the  insur- 
ance, and  is  not  within  the  condition  against  assignment 
in  the  policy.  Combs  v.  Shrewsbury  Mutual  Fire  Ins.  Co. 
5  Stew.  N.  J.  Eq.  R.  512.     1880. 

§  27.  When  policy  has  been  assigned  and  delivered 
before  the  loss  to  a  third  party  as  collateral  security  for  a 
debt,  which  is  subsequently  paid  and  satisfied,  and  is  after 
the  loss  again  assigned  to  another  party,  the  latter  may 
have  relief  in  equity.  Combs  v.  Shrewsbury  Mutual  Fire 
Ins.  Co.  5  Stew.  N.  J.  Eq.  R.  512.     1880. 

§  28.  Policy  may  be  assigned  by  parol  and  a  deliv- 
ery tor  a  valuable  consideration.  An  equitable  assign- 
ment under  provisions  of  New  York  Code  is  in  eff"ect  a 
legal  assignment.  Greene  v.  Republic  Ins.  Co.  10  Ins.  L. 
J.  422.     1881.     N.  Y. 

See  Alienation,  §  20.  33,  38,  03.  Estoppel,  30,  33.  Interest  in  Policy, 
17.  MortgHgor  ani  Mortgagee,  9,  34,  35,  38,  43.  46.  Mutual  Company,  7, 
10,  11,  31,  74,  97,  144.  Notice  of  Loss,  20.  Other  Insurance,  16,  48.  Proofs 
of  Loss,  29.    Re-insurance,  3.    Renewal,  1.     Waiver,  20.    Who  Mny  Sue,  19. 


ill 


BONDS  OP  AGENTS. 

§  1.  The  death  of  a  surety  upon  an  agent's  bond 
does  not  discharge  his  estate  from  liability  for  default  of 
agent  happening  afterwards.  Royal  Ins.  Co.  v,  Davies,  4 
Ins.  L.  J.  865.     1875.    Iowa. 

§  2.  Condition  of  agent's  bond  being  that  he  "  should 
keep  true  and  correct  books  of  account,"  the  book,  kept 
by  him,  containing  entries  of  the  business  of  the  company 
only,  made  by  clerks  employed  by  firm  of  which  such 
agent  is  a  member,  is  competent  evidence  against  him  and 
his  sureties  of  the  amount  of  premiums  collected.  Wil- 
liamsburg Ins.  Co.  V.  Frothinghara,  122  Mass.  391.     1877. 

§  3.  In  a  suit  brought  upon  an  agent's  bond  against 
the  sureties,  the  latter  may  require  the  company  to  pro- 
duce, as  necessary  to  the  defense,  contracts  between  such 
company  and  other  companies  which  were  represented  by 
the  same  agent,  and  who  were  also  parties  to  the  bond. 
Germania  Fire  Ins.  Co.  v.  Circuit  Judge,  41  Mich.  258. 
1879. 

§  4.  Agent's  bond  contained  a  stipulation  that  the 
laws  of  New  York  were  to  control  in  determining  the  lia- 
bility of  the  obligors,  as  if  the  bond  had  been  made  in 
that  State.  There  was  no  evidence  of  any  difference  be- 
tween the  laws  of  New  York  and  Maine.  Ileld^  that 
contract  must  be  construed  according  to  the  laws  of 
Maine.  Scottish  Com.  Ins.  Co.  v.  Plummer,  70  Me.  540. 
1880. 

§  5.  William  H.  Van  Horn  had  been  acting  as  agent 
of  the  Watertown  Ins.  Co.  to  March,  1878,  at  which  time 
there  was  a  balance  due  the  company  of  uncollected  pre- 
miums to  the  amount  of  $400.  About  same  time  Perkins 
and  Van  Horn  were  appointed  agents,  and  gave  a  bond 
for  faithful  performance  of  their  duty,  signed  by  plaintiff 
in  error  Ball  as  surety.  June  1,  1878,  Perkins  and  Van 
Horn  gave  their  firm  note  to  the  company  for  $473  77,  to 
balance  their  account  as  it  stood  April  1,  1878.     Action 


BOOKS  OF  AOGOUNT  AND  YOUGHBBS. 


was  brought  upon  the  bond  to  recover  amount  due  upon 
the  note.  There  was  evidence  that  the  firm  had  for 
a  consideration  assumed  and  agreed  to  pay  balance  due 
company  from  Van  Horn  at  expiration  of  his  agency. 
Held^  that  surety  was  not  liable  for  money  collected  and 
retained  by  Van  Horn,  and  that  under  such  circumstances 
the  note  should  be  treated  as  an  accommodation  note,  but 
that  if  the  firm  had  collected  premiums  on  the  old  busi- 
ness, the  bond  covered  them.  Ball  v.  Watertown  Ina.  Co. 
9  Ins.  L.  J.  662.     1880.     Mich. 


BOOKS  OF  ACCOUNT  AND  VOUCHERS. 

§  1.  It  is  a  suflBcient  excuse  for  non-production  of 
books  that  they  were  destroyed  by  the  fire.  Aurora  Fire 
Ins.  Co.  V.  Johnson,  46  Ind.  315.     1874. 

§  2.  Policy  required  assured  to  produce  certified  cop- 
ies of  all  bills  and  invoices  the  originals  of  which  were 
lost.  Jury  were  charged  in  effect  that  assured  showed 
sufficient  compliance  by  proof  that  he  had  furnished  such 
copies  as  he  had  in  his  possession,  and  that  it  was  for 
them  to  say  whether  he  had  given  all  the  inform,ition  he 
had,  and  that  if  he  had  done  so,  he  was  entitled  to  recover. 
Held^  error.  That  assured  was  bound  to  furnish,  in  such 
a  case,  certified  copies  from  the  sellers  of  the  goods,  unless 
it  is  impossible  to  obtain  them,  or  condition  is  waived. 
O'Brien  v.  Commercial  B'ire  Ins.  Co.  63  N.  Y.  108.  1875. 
Kev'g  6  J.  cfe  S.  4. 

§  3.  When,  by  destruction  of  books  and  vouchers  by 
the  fire,  it  is  impossil)le  for  the  assured  to  furnish  them  as 
required  by  the  condition,  it  is  sufficient  to  furnish  an  aS&r 
davit  of  value  of  property  lost.  Perry  v.  Niagara  District 
Mut.  Ins.  Co.  21  L.  C.  Jurist,  257.     1877. 

§  4.     Where  notice  requires  production  of  books  afier 
the  proofs  called  for  by  same  notice  are  furnished,  if  there 
Vol.  II.-4 


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60 


BUBDEN  OF  PEOOF. 


is  no  obligation  on  part  of  assured  to  furnish  proofs  as  de- 
manded, the  non-production  of  the  books  cannot  be  con- 
strued as  a  refusal  to  produce  them.  Keeney  v.  Home 
Ins.  Co.  71  N.Y.  396.     1877. 

§  5.  If  there  is  any  question  as  to  the  inability  of  the 
assured  to  procure  and  furnish  duplicate  bills  of  purchase, 
it  is  error  to  take  the  case  from  the  jury.  Farmers'  Fire 
Ins.  Co.  V.  Mispelhorn,  50  Md.  180.     1878. 

§  6.  Assured  must  comply  with  condition  requiring 
him  to  furnish  bills  of  purchase  or  duplicates,  unless 
waived,  or  performance  has  become  impossible,  without 
fault  of  his  own.  Farmers'  Fire  Ins.  Co.  v.  Mispelhorn,  50 
Md.  180.     1878. 

See  Burden  of  Proof,  §  2.    Evidence,  77.    Proofs  of  Loss,  4,  51. 


BURDEN  OF  PROOF. 


§  1.  When  insurable  interest  is  put  in  issue  by  a 
special  plea,  the  burden  of  proof  rests  upon  the  plaintiff, 
and  under  such  circumstances  it  is  error  to  charge  the  jury 
that  if  the  proof  is  equally  balanced  the  jury  must  find 
for  the  plaintiff.    Ins.  Co.  v.  Diggs,  8  Baxt.  563.     1876. 

§  2.  Demand  having  been  made  that  che  assured  fur- 
nish duplicate  bills  of  purchase,  the  burden  of  proof  rests 
upon  him  to  show  that  it  was  not  possible  for  him  to 
comply  with  the  terms  of  the  condition  by  the  use  of  all 
reasonable  means  within  his  power.  Mispelhorn  v.  Farm- 
ers' Fire  Ins.  Co.  53  Md.  473.     1879. 

§  3.  Loss  by  fire  being  admitted,  the  burden  of  proof 
is  on  the  company  claiming  exemption  from  liability  to 
show  that  it  falls  within  the  exceptions.  Portsmouth  Ins. 
Co.  V.  Reynolds,  32  Grat.  616.     1880. 

See  Storing  and  Keeping,  §  18.    Vacant  or  Unoccupied,  6. 


BURNING  BY   DESIGN. 

§  1.  Where  defense  is  intentional  firing,  amount  of- 
fered as  rent  for  the  property  is  competent  evidence  as 
bearing  upon  the  question  of  motive.  Hotchkiss  v.  Ger- 
maniaFire  Ins.  Co.  5  Hun,  90.     1875. 

§  2.  The  validity  of  a  policy  is  not  an  essential  ele- 
ment of  proof  on  a  trial  of  an  indictment  for  arson.  State 
V.  Byrne,  45  Conn.  273.     1877. 

§  3.  To  sustain  the  defense  of  willful  burning,  com- 
pany is  not  required  to  prove  commission  of  the  oflfense 
beyond  all  reasonable  doubt,  as  required  in  a  criminal 
proceeding.  In  such  a  case  it  is  the  duty  of  the  jury  to 
find  for  the  party  in  whose  favor  the  evidence  preponder- 
ates. Kane  v.  Hibernia  Ins.  Co.  10  Vroom,  N.  J.  L.  R. 
697.  1877.  Huchberger  v.  Merchants  Ins.  Co.  4  Biss. 
265.  1868.  ^tna  Ins.  Co.  v.  Johnson,  11  Bush,  587. 
1875.  Simmons  v.  Ins.  Co.  8  W.  Va.  474.  1 875.  Blaeser 
V.  Milwaukee  Mut.  Ins.  Co.  37  Wis.  31.  1875.  Roth- 
schild V.  Am.  Cent.  Ins.  Co.  62  Mo.  356.  1876.  Farm- 
ers' Mut.  Ins.  Co.  V.  Gargett,  42  Mich.  289.     1879. 

§  4.  Semhle  that  the  willful  burning  by  wife  of  the 
assured  without  his  privity,  is  covered  oy  the  ordinani" 
fire  policy.  Midland  Ins.  Co.  v.  Smith,  Law  Rep.  6  Q.  B. 
D.  561 ;  24  Alb.  L.  J.  139.     1881. 

See  Agent,  §  84.    Evidence,  84.    Pleading  and  Practice,  28. 


1 


BY-LAWS  AND  CONDITIONS. 

§  1.  Policy  is  not  made  absolutely  void  by  a  breach 
of  its  conditions,  but  is  voidable  only  at  option  of  the 
company.  Canada  Land  Com  pan  v  v.  Canada  Agricul- 
tural Ins.  Co.  17  Grant  Ch.  418.     1870. 

§  2.  Assured  bound  to  take  notice  of  terras  of  policy ; 
his  neglect  to  make  himself  acquainted  with  its  provisions 
<?annot  enlarge  company's  liability.  Pindar  v.  Resolute 
Fire  Ins.  Co.  47  N.  Y.  114.  1871.  And  see  Reynolds  v. 
Commerce  Fire  Ins.  Co.  Id.  604.     1872. 

§  3.  Policy  provided  that  company  should  not  be  lia- 
ble for  any  loss  or  damage  by  fire  occasioned  by  earth- 
quakes or  hurricanes  or  by  burning  of  forests,  and  that  it 
should  remain  suspended  and  of  no  effect  in  respect  of  any 
loss  or  damage  (Jioioever  caused)  which  shall  happen  or  arise 
during  the  existence  of  any  of  the  contingencies  aforesaid. 
Held^  that  under  such  a  condition  the  fact  that  at  the  time 
of  the  loss  neighboring  forests  were  burning  is  sufficient 
to  prevent  a  recovery.  Commercial  Union  Ina  Co,  v. 
'Canada  Manufacturing  Co.  18  L  C.  Jurist,  80.     1873. 

§  4.  An  alteration  of  policy  by  subsequent  agree- 
ment is  ineffectual  unless  made  and  delivered  to  other 
party  with  the  knowledge  and  consent  of  party  executing 
it.  Hoffecker  v.  N.  C.  M.  Ins.  Co.  4  Iloust.  (Del.)  306. 
1874. 

§  5.  Ignorance  of  assured  of  conditions  in  policy  can- 
not deprive  the  company  of  their  benefit.  Ervin  v.  N.  Y. 
Cent.  Ins.  Co.  3  T.  &  C.  (N.  Y.  Sup.)  213.  1874.  s.  p. 
Monitor  Mut.  Ins.  Co.  v.  Buffiim,  115  Mass.  343.     1874. 

§  6.  A  forfeiture  depends  upon  election  of  the  com- 
pany. Pratt  V.  N.  Y.  Central  Ins.  Co.  55  N.  Y.  605. 
1874. 

§  7.  Assured  hy  acceptance  of  the  policy  is  bound  by 
its  terms  and  conditions,  whether  he  could  or  could  not 
make  himself  acquainted  with  its  contents;  his  want  of 


BY-LAWS  AND  CONDITIONS. 


53 


knowledge  of  the  English  language  is  no  excuse.     Fuller 
V.  Madison  Mutual  Ins.  Co.  36  Wis.  599.     1875. 

§  8.  When  the  value  of  the  property  is  trifling  in 
amount  and  there  is  no  proof  that  its  value  could  have 
been  improved,  there  is  nothing  in  the  point  that  the 
assured  failed  to  put  the  damaged  property  in  the  best 
possible  order  after  the  fire.  Wright  v.  Hartford  Fire  Ins. 
Co.  36  Wis.  522.     1875. 

§  9.  There  can  be  no  modification  of  the  terms  of  a 
policy  by  effect  of  a  resolution  of  the  directors  of  the  com- 
pany made  subsequently  to  its  issue,  but  never  known  or 
assented  to  by  the  assured.  Martin  v.  Mutual  Fire  Ins. 
Co.  45  Md.  51.  1876.  s.  p.  Planters'  Mut.  Ins.  Co.  v. 
Engle,  52  Md.  480.     1879. 

§  10.  Semhle  that  the  operative  force  of  every  condi- 
tion in  an  insurance  policy  (in  Canada)  is  made  by  statute 
to  depend  upon  the  opinion  of  the  court  as  to  whether 
the  conditions  are  just  and  reasonable,  and  if  it  does  not 
so  hold  they  shall  be  absolutely  null  and  void.  36  Vic. 
ch.  44,  sec.  33.  Morrow  v.  Waterloo  County  Mutual  Fire 
Ins.  Co.  39  Up.  Can.  Q.  B.  441.     1876. 

§  11.  The  conditions  of  a  policy  indorsed  in  small 
type  upon  the  back  of  it  are  not  part  of  it  to  bind  the  as- 
sured, unless  they  are  distinctly  drawn  to  the  attention  of 
the  insured  at  the  time  of  the  contract.  Bassell  v.  Ameri- 
can Fire  Ins.  Co.  2  Hughes,  531.     1877. 

§  12.  Fraud  on  part  of  the  insured  in  obtaining  in- 
surance voids  it  without  any  express  provision  in  the 
policy  to  that  effect.  Moore  v.  Virginia  Fire  Ins.  Co.  28 
Grat.  508,  524.     1877. 

§  13.  Company  cannot  avail  itself  of  conditions  of  in- 
surance prescribed  by  the  statute  (39  Vic.  ch.  24),  unless 
sucli  conditions  are  printed  on  the  policy,  and  if  the  com- 
pany has  neglected  to  print  such  conditions,  it  must  be 
helcl  as  against  the  assured  that  the  policy  is  issued  with- 
out conditions  of  any  kind.  Frey  v.  Mutual  Fire  Ins.  Co, 
43  Up.  Can.  Q.  B.  102.     1878. 


■Jill 


m  CANCELLATION. 

§  14.  The  legal  eflfect  of  the  statutory  conditions 
pi'inted  in  a  policy  is  not  altered  by  size  of  the  type.  Bal- 
lagh  V.  Royal  Mut.  Ins.  Co.  44  Up.  Can.  Q.  B.  70.     1879. 

§  15.     When  policy  does  not  comply  with  the  statu' 
prescribing  conditions  of  insurance,  it  must  be  treated  as 
one  without  any  conditions,  and  that  therefore  a  condition 
as  to  arbitration,  Held^  not  to  be  a  defense.     Mclntyre  v. 
National  Ins.  Co.  44  Up.  Can.  Q.  B.  501.     1879. 

§  16.  The  conditions  of  a  policy  of  insurance  are  no 
part  of  the  consideration.  Assured  must  keep  and  per- 
form them  or  the  policy  is  inoperative,  ])ut  he  does  not 
agree  to  do  so.  It  is  not  a  case  of  mutual  covenants  and 
agreements  where  the  agreement  of  one  side  constitutes 
the  consideration  for  the  promise  of  the  other.  Lockwood 
V.  Middlesex  Mut.  Ins.  Co.  47  Conn.  553.     1880. 

See  Agent,  §  31.  Application,  16.  Evidence,  7,  8,  26,  87.  Mortgagor 
and  Mortgagee,  5.  Mutual  Company,  38.  Proofs  of  Loss,  60.  Questions 
for  Court  and  Jury,  3.     Warranty  and  Representation,  1. 


!l 


CANCELLATION. 

§  1.  Condition  giving  company  the  option  of  cancel- 
ling the  poli(iy  is  valid  and  will  be  enforced.  Irwin  v. 
National  Ins.  Co.  2d  Disney  Cin.  Sup.  Ct.  68.     1858. 

§  2.  The  mistake  of  a  person  who  procures  a  policy, 
in  ordering  or  consenting  to  cancellation,  does  not  release 
the  company.  Marsh  v.  Northwestern  Nat.  Ins.  Co.  .*{ 
Biss.  351.     1872. 

§  3.^  Although  company  has  reserved  the  right  to 
cancel  its  policy  at  its  option,  it  cannot  do  so  when  dan- 
ger of  fire  IS  imminent.  Homo  Ins.  Co.  v.  lleek,  65  111. 
HI.     18'^2. 

§  4.  Under  the  clause  givincr  right  at  option  of  the 
company  to  cancel  the  policy  on  giving  notice  and  refund- 


CANCELLATION. 


55 


ing  a  ratable  proportion  of  the  premium  for  the  unexpired 
time,  it  is  essential,  the  premium  having  been  paid,  that 
the  Dotice  should  be  accompanied  by  payment  or  tender 
of  the  correct  return  premium  to  the  assured,  who  must 
be  sought  for  that  purpose.  The  clause  is  in  the  nature 
of  a  condition  precedent.  Van  Valkenburg  v.  Lenox 
Fire  Ins.  Co.  51  N.  Y.  466.  1873.  Holliogsworth  v. 
Germania  Ins.  Co.  45  Ga.  294.  1872.  Home  Ins.  Co.  v. 
Curtis,  32  Mich.  402.  1875.  White  v.  Connecticut  Ins. 
Co.  120  Mass.  330.     1876. 

§  5.  An  entry  by  company  on  its  books  noting  can- 
cellation, made  without  knowledge  or  consent  of  the  as- 
sured, is  not  admissible  as  evidence  of  the  facts  recited. 
King  V.  Enterprise  Ins.  Co.  45  Ind.  44.     1873. 

§  6.  A  surrender  of  policy  by  assured  to  company's 
agent,  and  the  acceptance  of  it  by  him,  with  intention  on 
part  of  both  that  it  shall  be  no  longer  a  contract  between 
the  assured  and  the  company,  is  in  effect  a  cancellation. 
Train  v.  Holland  Purchase  Ins.  Co.  62  N.  Y.  698.     1875. 

§  7.  When  policy  has  been  once  surrendered,  and 
surrender  accepted  by  company's  agent,  the  taking  of  it 
back  cannot  revive  the  contract  or  make  a  new  one.  At 
least  it  is  for  a  jury  to  Hay  what  may  be  the  meaning  of 
such  an  act,  assured  having  a  right  to  take  cautionary 
measures.  Train  v.  Holland  Purchase  Ins.  Co.  62  N.  Y. 
598.     1875. 

§  8.  When  application  is  to  cancel  an  old  policy  and 
make  a  new  one  enlarging  existing  contract,  it  does  not 
warrant  a  cancellation  without  at  the  same  time  comply- 
ing with  the  request  as  an  entirety;  cancellation  cannot 
be  eftected  without  assent  or  authority  of  the  assured. 
Wilkins  V.  Fire  Inn.  Co.  30  Ohio,  317.     1876. 

§  9.  Py  returning  policy  to  company  for  cancellation 
as. 'ired  cancels  it  on  his  part,  and  by  retaining  the  policy 
two  and  onelialf  months  without  objection  to  its  cancel- 
lation the  company  by  its  delay  and  silence  consents 
thereto  and  is  estopped  to  assert  to  the  contrary.  Wal- 
ters V.  St.  Joseph  Fire  Ins.  Co,  39  Wis.  489.     1876. 


56 


CANCF.LLATION. 


!<!!*■ 


§  10.  Under  usual  provision  giving  company  the 
right  to  cancel  a  policy,  it  is  entirely  optional  when  and 
for  what  reason  it  shall  terminate  the  contract.  The 
motive  or  sufficiency  of  the  cause  for  the  exercise  of 
this  option  and  election  are  not  to  be  passed  upon  by 
any  tribunal,  but  the  will  of  the  company  and  its 
election  must  stand  for  the  reason  of  its  action,  and  is 
cause  for  terminating  the  risk.  International  Life  Ins. 
Co.  V.  Franklin  Fire  Ins.  Co.  66  N.  Y.  1 19.     1876. 

§  11.  Policy  contained  clause  that  "this  company 
shall  not  be  liable  by  virtue  of  this  policy,  or  any  renewal 
thereof,  unless  the  premium  therefor  be  actually  paid  to 
them  or  to  their  duly  commissioned  agent,  within  thirty 
days  from  date  of  the  policy  or  renewal."  Held,  that 
premium  not  being  paid,  company  might  cancel  the  policy 
after  the  thirty  days  had  expired,  without  notice  to  the 
assured.  And  that  a  waiver  could  not  be  established  by 
evidence  of  course  of  defendant  in  reference  to  policies 
previously  issued  to  other  parties.  Redfield  v.  Pater- 
son  Ins.  Co.  6.  Abb.  N.  C.  456.  1877.  City  Court  Brook- 
lyn. 

§  12.  Cancellation  is  effected  by  notice  to  the  insur- 
ance broker  who  obtains  the  policy  and  by  payment  or 
tender  of  the  return  premium  to  him.  Hartford  Fire  Ins. 
Co.  V.  Reynolds,  36  Mich.  602.     1877. 

§  13.  When  a  loss  is  made  payable  to  a  third  party, 
such  person  cannot  deal  with  the  policy  as  his  own  en- 
tirely and  agree  to  its  cancellation.  So  far  as  any  pay- 
ment to  him  is  concerned  he  may  surrender  his  claim,  but 
the  person  who  as  owner  of  the  property  is  named  as  the 
party  insured,  if  he  retains  his  interest  in  the  property 
insured  is  entitled  to  his  indemnity  to  extent  of  such  in- 
terest not  exceeding  the  amount  insured.  Marrin  v. 
Stadacona  Ins.  Co.  43  Up.  Can.  Q.  B.  056.     1878. 

§  14.  Cancellation  cannot  be  effected  by  surrender 
and  delivery  of  the  policy  by  a  mis-take  of  the  party  to 
whom  the  loss  is  made  payable.  Marrin  v.  Stadacona 
Ins.  Co.  43  Up.  Can.  Q.  B.  556.     1878. 


CANCELLATION. 


57 


§  15.  When  premium  has  not  been  paid,  notice  of 
cancellation  may  be  given  to  the  party  to  whom  loss  is 
made  payable  and  cancellation  is  effected  at  the  time  of 
the  service  of  the  notice.  Mueller  v.  Southside  Fire  Ins. 
Co.  87  Pa.  399.     1878. 

§  16.  Policy  containing  usual,  conditions  as  to  can- 
cellation, and  making  party  procuring  the  insurance  the 
agent  of  assured,  the  insurance  may  be  terminated,  the 
premium  not  being  paid,  by  notice  to  a  broker  who 
obtained  the  policy,  who  accepts  such  notice  and  promises 
to  return  the  policy.  Grace  v.  Am.  Central  Ins.  Co.  16 
Blatch.  433.     1879. 

§  17.  Company  may  show  universal  custom  in  case 
where  it  intends  to  terminate  a  risk,  to  give  notice  of 
8uch  termination  to  the  broker  who  procured  the  policy. 
Grace  v.  Am.  Cent.  Ins.  Co.  16  Blatch.  433.     1879. 

§  18.  Policy  providing  that  it  may  be  terminated 
upon  notice,  it  is  not  competent  for  assured  to  prove  that 
custom  is  that  such  notice  does  not  take  effect  until  a  rea- 
sonable time  has  elapsed.     Grace  v.  Am.  Cent.  Ins.  Co. 

16  Blatch.  433.     1879. 

§  19.  Under  clause  giving  right  to  cancel,  the  insur- 
ance is  terminated  by  giving  the  notice  prescribed  by  the 
policy,  the  premium  not  being  paid.  Grace  v.  Am.  Cent. 
Ins.  Co.  16  Blatch.  433.     1879. 

§  20.  An  action  lies  to  reinstate  a  policy  cancelled 
by  the  company.     Mansbach  v.  Metropolitan  Life  Ins.  Co. 

17  Hun,  340.     1879. 

§  21.  An  interim  receipt  for  insurance  stated  that  it 
was  made  subject  to  all  the  conditions  contained  in  the 
printed  form  of  policy  then  in  use.  Among  such  condi- 
tions was  one  providing  that  policy  might  be  cancelled  on 
giving  ten  days  notice,  and  by  re[);iyuient  of  the  unearned 
poi-tion  of  the  premitun.  The;  receipt  stated  that  the  prop- 
erty should  be  held  insured  tor  thirty  days  from  date,  un- 
less notified  to  the  contnuy.  Ildd,  that  in  order  to  ter- 
minate the  insurance  the  company  was  bound  to  give  ten 


\m 


'    i! 


!?  :3:  :! 


58 


CANCELLATION. 


!'  • 


I!'  m 


days  notice  and  pay  the  return  premium.    Grant  v.  Reli- 
ance Fire  Ins.  Co.  44  Up.  Can.  Q.  B.  229.     1879. 

§  22.  A  local  agent  of  a  company  on  a  visit  to  the 
oil  factory  insured  saw  that  cotton  gins  were  used.  Dur- 
ing the  same  summer  the  secretary  visiting  the  local  agent, 
the  latter  complained  he  was  not  allowed  to  take  a  risk  on 
gins  and  gin  houses,  and  when  told  that  the  company  de- 
clined all  such  risks  replied,  "  you  have  a  risk  on  Ahren- 
beck's  Cotton  Seed  Oil  Factory,  and  they  are  running 
gins."  The  secretary  replied  disclaiming  any  knowledge 
of  any  such  risk,  and  said  that  if  he  found  a  policy  pro- 
viding for  such  a  risk  he  would  cancel  it.  The  secretary 
testified  that  the  conversation  occurred  on  the  street,  that 
it  had  passed  out  of  his  mind,  and  that  he  didn't  think 
of  it  again.  He  said  further,  that  if  any  such  information 
had  been  communicated  to  him  in  relation  to  any  fact 
affecting  the  validity  of  the  policy,  he  should  feel  bound 
to  act  upon  it  in  some  way,  but  that  he  should  not  if 
spoken  to  by  one  having  no  interest  in  the  policy.  It  was 
claimed  that  company  was  bound  to  cancel  the  policy  after 
such  information.  Jleld,  that  it  was  error  to  charge  the 
jury,  as  a  matter  of  law,  that  the  company,  through  the 
information  given  through  its  secretary,  had  notice.  Texas 
Banking  Co.  v.  Hutchins,  53  Tex.  61.     1880. 

§  23.  Brokers  for  assured  consented  that  poli'^y  might 
be  cancelled  and  the  amount  replaced  in  another  company, 
and  that  the  return  premium  might  be  applied  in  pay- 
ment of  premium  due  the  latter,  and  policy  was  deliv- 
ered to  agent  for  that  purpose.  The  agent  indorsed  the 
word  "  cancelled "  upon  the  policy,  made  up  the  return 
premium,  and  put  both  together  in  his  safe,  where  thoy 
were  when  fire  occurred  two  days  later  without  the  agent 
having  replaced  the  insurance  or  given  any  notice  of  his 
failure  to  do  so.  The  assured  had  no  knowledj^e  of  the 
negotiations  concerning  cancellation.  Held,  waiving  ques- 
tion of  authority  in  brokers  to  cancel,  that  they  had  con- 
sented only  on  condition  of  replacing  the  insurance,  and 
that  as  this  had  not  been  done,  and  the  unearned  premium 
was  not  returned,  policy  was  not  cancelled,  and  defendant 


CERTIFICATE. 


59 


was  liable.    Poor  v.  Hudson  Ins.  Co.  9  Ins.  L,  J.  428. 
1880.    N.  H. 

§  24.  Company,  to  effect  cancellation,  must  make  an 
actual  payment  of  the  return  premium.  If  a  due-bill  or 
other  certificate  of  indebtedness  is  given  for  the  same,  it 
is  for  the  jury  to  determine  whether  such  an  instrument 
is  taken  as  payment  or  only  as  evidence  of  indebtedness. 
Home  Ins.  Co.  v.  Tighe,  12  Rep.  441.     1881.     Pa. 

See  Agent,  §  14,  20,  41,  43,  45,  68.  Alienation,  14.  Consummation  of 
Contract,  10.  Increase  of  Risk,  5,  7,  9,  15,  18.  Mortgagor  and  Mortgagee, 
16,  20,  23.  Mutual  Company,  34,  42,  62,  57,  88,  91,  143,  157.  Other  Insur- 
ance, 10,  33.  Premium,  18,  19.  Questions  ifor  Court  and  Jury,  14.  Refor- 
mation, 2.    Vacant  or  Unoccupied,  37. 


CERTIFICATE. 

§  1.  The  nearest  magistrate  who  has  property  de- 
stroyed by  the  same  fire  is  disqualified  from  signing  a  cer- 
tificate.   Ganong  v.  ^tna  In?.  Co.  6  Allen  N.  B.  75.    1864. 

§  2.  Assured  became  insolvent  after  a  loss,  and  the 
plaintiff  was  the  official  assignee.  A  certificate  stated  that 
the  subscriber  was  not  in  any  way  interested,  that  he  Lad 
examined  the  circumstances  attending  the  fire,  that  he  was 
acquainted  with  the  character  of  the  assured,  that  he  ver- 
ily believed  that  the  claimant,  the  assignee,  had,  as  such 
assignee,  sustained  loss  or  damage  to  the  I'xtent  of  $2,500 ; 
that  the  said  claimant  and  assignee  has,  without  fraud  or 
evil  practice,  sustained  the  said  loss  and  damage.  Condi- 
tion  required  certificate  from  the  magistrate  or  notar)  pub- 
lic most  contiguous  to  the  place  of  the  fire,  stating  that  he 
had  examined  the  circumstances  attending  it,  that  he  is 
acquainted  with  the  character  and  circumstances  of  the  as- 
sured or  claimant,  and  that  ho  verily  believes  that  he  has, 
by  misfortune  and  without  fraud  or  evil  practice,  sustained 
loss  and  damage  to  the  amount  which  the  magistrate  or 


f'Si 


imf 


m 


60 


CERTIFICATE. 


Ifi 


■    ! 


notary  public  shall  certify.  The  certificate  in  question  m 
this  case  was  subscribed  by  the  coroner.  Held,  first,  that 
the  coroner  was  a  magistrate  within  the  meaning  of  the 
condition,  but  that  the  certificate  as  given  did  not  comply 
with  it,  as  it  was,  in  fact,  an  evasion  of  the  most  essential 
part  of  the  certificate  required  by  the  company.  Kerr  v. 
British  America  Assurance  Co.  32  Up.  Can.  Q.  B.  569. 
1872. 

§  3.  Policy  required  certificate  of  magistrate  most 
contiguous  to  place  of  fire,  and  "  not  concenied  in  the  loss 
as  a  creditor  or  otherwise."  The  magistrate  who  signed 
the  certificate  in  question  was  the  landlord  of  the  assured 
and  plaintiff  to  whom  the  premises  were  leased  for  fifteen 
years,  and  at  time  of  the  fire  the  lease  had  nine  years  to 
run.  The  lease  contained  covenant  that  the  assured  would 
leave  the  premises  in  as  good  and  sufficient  repair  as  to  be 
capable  of  sawing  2,000  feet  of  lumber  in  twelve  hours, 
the  lessor  agreeing  to  allow  the  plaintiff  to  remove  extra 
machinery  that  might  be  erected  by  the  assured  more  than 
required  to  saw  such  an  amount  in  twelve  hours  at  the 
expiration  of  assured's  possession,  or,  otherwise,  the  lessor 
covenanted  to  pay  the  assured  a  fair  compensation  for  the 
same.  Court  equally  divided  as  to  whether  or  not  the 
magistrate  was  concerned  in  the  loss  within  the  meaning 
of  the  condition.  McRossie  v.  Provincial  Ins.  Co.  34  Up. 
Can.  Q.  B.  55.     1873. 

§  4.  Condition  required  that  the  magistrate  shall  cer- 
tify that  "  he  has  made  diligent  inquiry  into  the  facts  set 
forth  in  the  statement  of  the  assured."  The  certificate 
was  "  that  I  have  read  his  statement  of  loss,  and,  from  dili- 
gent inquiries  made  by  me,  I  verily  believe  that  he  has 
really  and  by  misfortune,  and  without  fraud  or  culpable 
carelessness,  sustained  loss  of  over  $3,000."  Held,  insuffi- 
cient, as  it  did  not  certify  that  he  had  made  any  inquiry 
as  to  the  truth  of  the  facts  set  forth  in  the  s^^atement,  but 
only  as  to  the  amount  of  the  loss,  and  that  there  was  also 
a  fatal  defect  in  that  it  did  not  state  that  the  loss  was  sus- 
tained on  the  subject-matter  insured.  Mason  v.  Andes 
Ins.  Co.  23  Up.  Can.  C.  P.  37.     1873. 


CBRTiriOATB. 


6L 


8  5.  Signatures  purporting  to  be  those  of  justices  of 
the  peace  in  proofs  of  loss  are  admitted  as  genuine  on  trial 
in  insurance  cases,  in  the  absence  of  proof  to  the  contrary. 
Lafarge  v.  Liv,  Lond.  &  Globe  Ins.  Co.  17  L.  C.  Jurist, 
237.    1873. 

§  6.     When  policy  provides  for  the  production  of  a 
nstrate's  certificate  before  loss  is  payable,  it  is  a  condi- 


magis 


tion  precedent  to  right  to  sustain  action.  Compliance  is 
not  shown  by  best  efforts  to  procure  it.  Johnson  v.  Phoe- 
nix Ins.  Co.  112  Mass.  49. 


procure 
1873. 


§  7.  Condition  requiring  certificate  of  nearest  magis- 
trate is  precedent  to  loss  becoming  due  and  payable. 
Home  Ins.  Co.  v.  Duke,  43  Ind.  418.     1873. 

§  8.  The  nearest  magistrate  who  has  property  which 
is  burned  by  the  same  fire,  and  who  has  made  complaint 
against  the  assured  and  plaintiff,  charging  him  with  the 
crime  of  setting  the  fire,  is  concerned  in  the  loss,  within 
the  meaning  of  the  condition,  as  he  has  a  claim  against 
the  assured  on  account  of  the  fire,  and  hence  an  interest  in 
withholding  the  certificate.  Under  such  cij'cumstances 
the  next  nearest  magistrate  or  officer  is  the  proper  party 
to  give  the  certificate.  Wright  v.  Hartford  Fire  Ins.  Co. 
36  Wis.  522.     1875. 

§  9.  Upon  an  issue  as  to  whether  certificate  has  been 
furnished  within  a  reasonable  time,  if  the  facts  are  undis- 
puted, it  should  be  determined  by  the  court ;  a  delay  of 
eight  months  in  this  case  Held^  not  to  be  unreasonable. 
Cammell  v.  Beaver  &  Toronto  Fire  Ins.  Co.  39  Up.  Can. 
Q.  B.  1.     1876. 

§  10.  Policy  required  that  persons  sustaining  loss  by 
fire  should  forthwith  give  notice  as  soon  after  as  possible, 
and  deliver  a  particular  account  of  the  loss,  stating,  &c. 
They  shall  also  produce  a  certificate  under  the  hand  and 
seal  of  a  magistrate,  <t;c.  Ilcld^  that  assured  was  not 
thereby  required  to  furnish  a  certificate  as  soon  as  possi- 
ble, but,  that  if  he  did  so  within  a  reasonable  time  it  was 
sufiicient.  Cammell  v.  Beaver  &  Toronto  Fire  Ins.  Co.  39 
Up.  Can.  Q.  B.  1.    1870. 


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CERTIFICATE. 


U  i 


§  11.  Condition  requiring  magistrate's  certificate  is 
precedent  to  assured's  right  of  recovery.  Cammell  v.  Bea- 
ver <fc  Toronto  Fire  Ins.  Co.  39  Up.  Can.  Q.  B.  1.     1876. 

§  12.  Where  there  are  several  officers  residing  in  the 
same  immediate  neighborhood,  all  of  whom  are  competent 
to  make  the  certificate,  that  of  either  of  them  will  be  a 
sufficient  compliance  with  the  condition,  and  a  distance  of 
a  few  yards  more  or  less,  from  place  of  fire,  will  not  be  re- 

?arded  as  a  matter  of  any  importance.    American  Cent, 
ns.  Co.  V.  Rothschild,  82  111.  166.     1876.    s.  p.  Williams 
V.  Niagara  Ins.  Co.  50  Iowa,  561.     1879. 

§  13.  Compliance  with  condition  in  regard  to  furnish- 
ing certificate  by  the  nearest  magistrate,  is  precedent  to  a 
right  to  recover.  Such  fact  must  be  proved  upon  the  trial, 
and  will  not  be  inferred  from  evidence  merely  that  the 
certifying  justice  resided  in  the  same  district  that  the  as- 
sured did.  Herkins  v.  Provincial  Ins.  Co.  3  Russel  &  C. 
N.S.  176.    1878. 

§  14.  Agent  having  previously  insisted  upon  a  com- 
pliance with  all  the  conditions  of  the  policy,  his  silence 
upon  receiving  a  letter  forwarding  certificate  from  two 
magistrates  and  explaining  why  a  certificate  from  the  two 
nearest  was  not  produced,  is  no  evidence  of  waiver. 
O'Connor  v.  Commercial  Union  Ins.  Co.  3  Russel  &  C.  N. 
S.  119.    1878. 

§  15.  The  statement  of  the  amount  of  the  loss  in  a 
certificate  by  a  magistrate  or  notary,  is  precedent  to  tlie 
right  to  recover.  Borden  v.  Provincial  Ins.  Co.  2  Pugsley 
&  B.  N.  B.  381.    1878. 

§  16.  If  notary  is  interested  or  related  to  assured  it 
is  matter  of  defense  and  need  not  be  alleged  or  proved  by 
plaintifi',  but  must  be  by  defendant.  Phoenix  Ins.  Co.  v. 
Perkey,  92  111.  164.  1879.  Phcenix  Ins.  Co.  v.  Duff,  9 
Ins.  L.  J.  23.     1879.    111. 

§  17.  When  certificate  of  loss  was  received  in  March, 
and  no  objection  was  made  until  after  suit  brought  in 
August  following.  Held,  to  be  sufficient  evidence  of  an  ac- 


COLLISION. 


68 


ceptance.    Lockwood  v.  Middlesex  Mui.  Ins.  Co.  47  Conn. 
553.    1880. 

§  18.  Policy  provided  that  proofs  should  be  fur- 
nished within  30  days,  and  that  assured  should  also  pro- 
duce a  certificate  under  the  hand  and  seal  of  the  chief 
of  the  Fire  Department,  &c. ;  Held,  that  the  limitation  of 
the  30  days  does  not  apply  to  the  certificate  which  must 
be  furnished  within  a  reasonable  time.  Badger  v.  Glen's 
Falls  Ins.  Co.  49  Wis.  389.     1880. 

§  19.  The  phrase  "  not  concerned  in  the  loss  as  a 
creditor,"  cannot  disqualify  every  magistrate  who  may 
chance  to  be  a  creditor,  even  to  a  small  amount,  of  the  as- 
sured. The  phrase  should  be  interpreted  as  requiring 
certificate  of  a  magistrate  who  is  not  concerned  in  the  loss 
by  reason  of  having  an  interest  in  the  property  or  in  the 
policy  as  security.  Dolliver  v.  St.  Joseph  Fire  Ins.  Co.  10 
Ins.  L.  J.  380.     1881.     Mass. 

See  Evidence,  §  21.     Foreign  Company,  14.    Waiver,  3. 


COLIISION. 

§  1.  Company  is  liable  for  loss  or  damage  by  fire  oc- 
casioned by  collision  or  any  cause  not  expressly  excepted 
in  the  contract.     Germania  Ins.  Co.  v.  Sherlock,  25  Ohio, 

33.    1874. 

§  2.  Policy  contained  condition  that  "  no  loss  is  to  be 
paid  in  case  of  collision,  except  fire  ensue,  and  then  only 
for  the  loss  and  damage  by  fire.  And  that  no  loss  is  to 
be  paid  arising  from  petroleum  or  other  explosive  oils," 
and  covered  property  in  an  express  car  attached  to  a 
train  on  the  Hudson  River  R.  K,  on  its  way  to  Albany 
from  New  York.  The  train  came  into  collision  with  an 
oil  car  which,  by  the  breaking  of  its  axle,  had  been  thrown 
from  the  other  track.      Immediately  the  oil  ignited  and 


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OONOBALMENT. 


burst  into  flames  whicli  destroyed  moat  of  the  train,  in- 
cluding property  insured.  Held,  that  the  loss  was  not 
covered  by  the  policy.  Imperial  Ins.  Co.  v.  Express  Co. 
5  Otto,  227.    1877. 


CONCEALMENT. 

,  /here  the  circumstances  do  not  themselves  show 
M  fraudulent  intention,  it  is  error  to  take  a  question  of 
concealment  from  the  jury.  People  v.  Liv.  Loud.  &,  G. 
Ins.  Co.  2  T.  &  C.  (N.  Y.  Sup.)  268.     1873. 

8  2.  The  presence  of  benzine  in  a  contiguous  build- 
ing IS  a  fact  material  to  risk,  and  if  not  disclosed  in  the 
application,  it  is  fatal  to  the  insurance  without  reference 
to  the  fact  whether  the  omission  was  by  design,  ignorance 
or  inadvertence.  McFarland  v.  Peabody  Ins.  Co.  6  W. 
Va.  425.     1873. 

§  3.  An  omission  to  state  a  small  mortgage  in  an  ap- 
plication for  an  insurance  existing  upon  the  property,  but 
which  the  vendor  of  the  applicant  is  bound  to  remove  by 
the  terms  of  the  contract  of  purchase,  is  not  material  to 
the  risk.  American  Ins.  Co.  v.  Gilbert,  27  Mich.  429. 
1873. 

§  4.  The  fact  that  assured  has  previously  applied  to 
another  agent  of  the  same  corapiny  for  insurance  and  been 
refused  and  omits  to  state  such  fact  when  he  obtains 
policy  in  suit  from  another  agent,  is  not  such  a  conceal- 
ment of  a  material  fact  as  to  render  it  void.  Goodwin  v. 
Lancashire  Fire  Ins.  Co.  18  L.  C.  Jurist,  1.  1873.  Re- 
versing 16  L.  C.  Jurist,  208. 

§  5.  In  the  absence  of  any  inquiry  or  provision  in 
the  policy,  concealment  of  litigation  will  not  affect  the  in- 
surance. Cheek  v.  Columbia  Fire  Ins.  Co.  4  Ins.  L.  J.  01). 
1874.    Tenn. 


CONCEALMENT. 


§  6.  Under  General  Statutes,  ch.  157,  sec.  2,  assured's 
omission  to  state  the  facts  in  regard  to  his  title  and  inter- 
est does  not  avoid  the  policy  unless  such  omission  is  in- 
tentional and  fraudulent.  Tuck  v.  Ins.  Co.  56  N.  H.  326. 
1876. 

§  7.  An  omission  to  state  in  an  application  that 
which  is  known  to  company's  agent,  cannot  under  ordinary 
circumstances  be  such  a  concealment  as  to  avoid  the  in- 
surance. Penson  v.  Ottawa  Ins.  Co.  42  Up.  Can.  Q.  B.. 
282.    1877. 

§  8.  There  can  be  no  material  concealment  in  absence 
of  inquiry  or  express  stipulation  on  the  subject,  in  fail- 
ing to  state  that  property  insured  is  in  the  custody  of 
lessee  of  assured,  policy  accurately  describing  location  of 
building  containing  it.  Little  v.  Phcenix  Ins.  Co.  123 
Mass.  380.     1877. 

§  9.  Concealment  or  omission  to  state  the  fact  of  a 
contingent  right  of  dower  in  assured's  vendor  does  not 
avoid  the  policy  unless  shown  to  increase  the  risk ;  if  such 
an  omission  is  fraudulent,  it  would  avoid  the  insurance, 
but  such  a  question  is  properly  submitted  to  the  jury. 
Virginia  Fire  Ins.  Co.  v.  Kloeber,  31  Grat.  749.    1879. 

§  10.  Policy  provided  that  it  should  be  void  if  there 
was  any  omission  to  make  known  a  material  fact.  There 
was  a  three  hundred  dollar  mortgage  on  the  property  un- 
disclosed at  the  time  of  the  obtaining  of  the  policy.  Held, 
that  the  existence  of  an  incumbrance  is  material  unless  so 
trifling  as  to  be  manifestly  unimportant,  whether  the  con- 
ditions are  or  are  not  treated  as  warranties,  ^tna  Ins. 
Co.  V.  Resh,  40  Mich.  241.     1879. 

§  11.  Semhle  that  a  diagram  cannot  be  regarded  as 
important  or  material  on  an  issue  of  concealment  when 
there  are  no  directions  in  the  application  specifying  that 
it  must  delineate  surrounding  property  for  a  certam  dis- 
tance.   Armenia  Ins.  Co.  v.  Paul,  91  Pa.  520.     1879. 

§  12.  A  threat  to  burn  assured's  property  made  sev- 
eral months  prior  to  the  fire,  during  the  excitement  attend- 

Vot.  II.— 6 


66 


CONST  RUCTION. 


ing  an  election,  which  was  not  stated  by  tl:e  assured  at  the 
time  of  the  obtaining  of  the  policy,  is  not  such  £  '.^nceal- 
ment  of  a  material  fact  as  will  avoid  the  insurance.  Kelly 
V.  Hochelaga  Mut.  Fire  Ins.  Co.  24  L.  C.  Jurist,  298. 
1880. 

(Jf  e  Application,  §  6.  Consummation  of  Contract,  6.  Entirety  and  Di- 
visibility of  Policy,  8.  Estoppel,  24.  Pleading  and  Practice,  29.  Title,  19, 
80,  85,  50.     Waiver,  18.     Warranty  and  Representation,  3,  10,  89,  84,  89. 


CONSTRUCTION. 

§  1.  Per  Churchy  Ch.  J.  In  case  of  ambiguity 
knowledge  of  facts  by  company  is  potent  upon  the  ques- 
tion of  intention  and  construction.  Reynolds  v.  Com^ 
merce  Fire  Ins.  Co.  47  N.  Y.  606.  1872.  And  see  Lud- 
wig  V.  Jersey  City  Ins.  Co.  48  N.  Y.  379.     1872. 

§  2.  Equivocal  language,  specially  such  as  is  calcu- 
lated to  mislead,  shall  be  construed  most  strongly  against 
the  company  using  the  language  and  issuing  the  policy. 
Reynolds  v.  Commerce  Fire  Ins.  Co.  47  N.  Y.  697.     1872. 

§  3.  When  policy  contains  plain  and  unambiguous 
language,  courts  must  look  to  it  alone  to  find  intention 
and  meaning  of  the  parties,  and  parol  proof  is  inadmissi- 
ble.   Hough  V.  People's  Ins.  Co.  36  Md.  398.     1872. 

§  4.  Conditions  working  a  forfeiture  must  be  strictly 
construed.  Morse  v.  Buffalo  Fire  Ins.  Co.  30  Wis.  534. 
1872.  Westchester  Fire  In».  Co.  v.  Earl,  33  Mich.  143. 
1876.  Aurora  Fire  Ins.  Co.  v.  Kianich,  36  Mich.  289. 
1877. 

^  5.  Rights  of  the  assured  and  liability  of  the  com- 
panies are  fixed  at  the  time  of  the  loss,  provided  the  req- 
uisite notices  and  proofs  are  furnished.  Imperial  Ina 
€o.  V.  Murray,  73  Pa.  13.    1873.  . 


00N8TBUCTI0N. 


67 


§  6.  Per  Alleriy  J,  Contracts  of  insurance  should  be 
construed  so  as  to  give  effect  to  intent  of  parties  as  indi- 
cated by  language  employed.  Tiiey  do  not  differ  in  any 
respect  from  other  written  instruments,  but  are  interpreted 
by  the  same  rules.  Insurers  and  insured  may  agree  upon 
terms  of  contract  and  make  its  validity  or  continuance  de- 
pend upon  any  terms  and  conditions  lawful  in  themselves, 
which  they  may  deem  reasonable  and  proper ;  and  whether 
reasonable  or  not  is  for  them,  not  for  the  courts,  to  deter- 
mine.   Savage  v.  Howard  Ins.  Co.  52  N.  Y.  504.    1873. 

§  7.  Conditions  should  not  be  extended  by  implica- 
tion so  as  to  embrace  cases  not  clearly  or  reasonably  within 
the  very  words,  as  such  words  are  ordinarily  used  and 
understood.  Kann  v.  Home  Ins.  Co.  59  N.  Y.  387. 
1874. 

§  8.  Policy  read,  "  tl.e  said  buildings  herein  insured 
are  more  than  *  oix '  feet  from  any  other  buildings,"  &c. 
The  case  turned  upon  the  question  whether  the  word 
italicised  was  '*  six,"  and  hence  sensible,  or  "  oix,"  and 
therefore  without  meaning  ;  if  the  former,  it  was  against 
tho  right  of  the  plaintiff  to  recover ;  if  the  latter,  it 
favored  recovery.  Trial  court  submittted  the  question  to 
the  jury  to  find  wh(jther  the  word  was  written  "  six  "  or 
"oix,"  and  received  their  verdict  for  the  plaintiff.  Held^ 
error,  that  tho  court  should  have  decided  the  point  as  a 
matter  of  construction  and  that  inspection  showed  plainly 
that  the  word  was  "six"  and  not  "oix."  Lapeer  Ins. 
Association  v.  Doyle,  30  Mich.  159.     1874. 

§  9.    A  contract  of  insurance  contains  two  classes  of 
stipulations:  first,  those  relating  to  matters  and   things 

f>rior  to  tho  loss  and  which  define  and  determine  tho 
imits  of  the  risk ;  and,  second,  those  which  relate  to  mat- 
ters and  things  occuriing  after  a  loss  an<l  having  for  their 
object  to  determine  the  mode  in  which  the  loss  is  to  bo 
established,  adjusted  and  recovered.  As  to  the  former, 
there  is  less  readiness  to  find  circumstances  of  waiver  than 
in  case  of  tho  latter,  llinman  v.  Hartford  Fire  Ins.  Co. 
36  Wis.  159.     1874. 


68 


GONSIRUOTION. 


§  10.  An  insurance  contract  is  to  be  construed  like 
other  contracts  with  a  view  to  arrive  at  the  intent  of  the 

{)artie8.  The  rule  that  it  shall  be  construed  most  strong- 
y  against  the  company  can  be  resorted  to  only  when,  after 
using  such  helps  as  are  proper  to  arrive  at  the  intent  of  the 
parties,  some  of  the  language  used,  or  some  phrase,  is  of 
doubtful  import.  Foot  v.  Mtna,  Life  Ins.  Co.  61  N.  Y. 
571.     1875. 

§  11.  Paragraphs  and  clauses  of  policy  should  not  be 
construed  so  as  to  make  them  conflict  with  each  other,  if 
such  a  construction  can  be  avoided.  They  should  be  con- 
strued so  as  to  make  them  harmonize,  if  such  a  construc- 
tion is  possible ;  and  so  as  to  give  to  each  and  all  their 
terms  full  force  and  operation.  The  intention  of  the 
parties  is  the  end  and  object  in  construction  of  all  instru- 
ments.   Cobb  V.  Ins.  Co.  N.  A.  17  Kans.  492.     1877. 

§  12.  Forfeitures  are  not  encouraged  in  law.  When 
forfeitures  of  insurance  policies  rest  on  substantial 
grounds  corresponding  to  the  risk,  courts  will  uphold 
them,  but  when  they  rest  on  pureh    echnical  grounds  not 

going  to  the  risk,  the  contract  of  insurance  is  to  be  up- 
eld  if  it  can  be  without  violation  of  any  principle  of 
law.  Appleton  Iron  Co.  v.  Bntish  American  Assurance 
Co.  46  Wis.  23.     1879. 

§  13.  The  words  of  an  insurance  contract  need  not 
be  taken  in  sense  in  which  they  may  have  been  under- 
stood by  underwriters.  They  must  be  taken  in  their 
ordinary  sense,  as  commonly  used  and  understood ;  and  if 
the  sense  in  which  they  were  used  is  uncertain,  they 
should  be  construed  most  favorably  to  the  assured. 
Herrman  v.  Merchants'  Ins.  Co.  81  N.  Y.  184.     1880. 

§  14.  Insurance  contract  should  be  enforced  accord- 
ing to  its  true  spirit,  but  its  meaning  must  be  obvious, 
and  require  no  straining  in  order  to  provoke  a  forfeiture. 
Woodruif  v.  Imperial  Fire  Ins.  Co.  83  N.  Y.  133.     1880. 

§  16.  A  total  loss  does  not  mean  an  absolute  extinc- 
tion. The  question  is  not  whether  all  the  parts  and 
materials  composing  a  building  are  absolutely  or  physic- 


■V 


\ 


CONSUMMATION  OP  COMTRAOT. 


CO 


ally  destroyed,  but  whether  after  the  fire  he  thing  in- 
sured still  exists  as  a  building.  Williams  v.  Hartford 
Ins.  Co.  54  Cal.  442.     1880. 

Bee  Damages,  §  21.  Definitions.  Evidence,  7,  16.  Qaestions  for  Court 
and  Jury,  2,  5,  7,  10.  Risk,  10,  15,  16.  21.  Storing  and  Keeping,  2,  8, 18, 
20,  21,  28.  Usage  and  Custom,  1.  Use  and  Occupation,  8,  9.  Warranty 
and  Representation,  24.    Wliat  Property  Covered,  8. 


CONSUMMATION  OF  CONTRACT. 

§  1.  Policy  is  issued  when  forwarded  by  agent  to 
broker  for  delivery.  McLaehlan  v.  ^tna  Ins.  Co.  4 
Allen,  N.  B.  173.     1858. 

§  2.  The  assured  held  policy  of  the  Lond.  and  Liv. 
Ins.  Co.  for  one  year,  expiring  Oct.  2d,  1866.  Just  before 
the  expiration  of  the  insurance  he  paid  the  local  agent 
premium  for  renewal  and  received  a  receipt.  The  general 
agent  of  the  companjr  declined  to  renew  the  risk  and  paid 
amount  of  the  premium  to  the  defendant  which  issued  a 
policy  on  the  same  risk  dated  October  16th,  1866,  but 
making  the  term  for  one  year  from  October  2d,  1866. 
The  property  was  destroyed  on  October  13th,  before  issue 
of  the  policy.  Held,  that  contract  of  the  defendant  took 
effect  from  the  second  of  October,  and  that  plaintiff  was 
entitled  to  recover.  Giffard  v.  Queen  Ins.  Co.  I  Hannay, 
N.  B.  432.     1869. 

§  3.  Policy  was  applied  for  and  dated  the  18th,  but 
was  not  delivered  nor  premium  paid  until  the  22d  day  of 
the  month.  Held,  that  policy  must  be  considered  as 
commencing  on  the  18  th,  the  day  of  its  date.  Hubbard 
V.  Hartford  Fire  Ins.  Co.  33  Iowa,  325.     1871. 

f  4.  Assured  in  good  faith,  having  no  knowledge  of 
the  fact,  applied  for  insurance  upon  property  which  had 
been  lost  two  days  before,  and  there  was  an  entry  made 
in  an  open  policy  covering  the  property"  lost  or  not  lost." 
Held,  that  such  entry  made  the  insurance  operative,  and 


70 


CONSUMMATION  OF  CONTRACT. 


it  covered  the  property  whether  lost  or  not  at  time  of  the 
indorsement.  Marx  v.  National  Ins.  Co.  25  La.  Ann.  39. 
1873. 

§  5.  When  agent  accepts  policy  sent  to  him  by  com- 
panyj  and  charges  himself  with  the  premium,  the  contract 
of  insurance  is  consummated,  and  company  is  liable.  Lung- 
strass  V.  German  Ins.  Co.  57  Mo.  107.     1874. 

§  6.  Plaintiff  made  his  application  for  insurance  on 
the  10th  day  of  January,  1871.  Application  was  accepted 
and  policy  made  out  and  signed  the  same  dajr,  being  in 
force  from  noon  of  that  day.  The  policy  remained  in  the 
hands  of  the  company  until  the  27th  of  March  next  ensu- 
ing. On  the  26th  of  March  the  property  was  destroyed 
by  the  fire,  and  on  the  following  day  the  plaintiff  went  to 
the  ofiice  of  the  company,  paid  the  premium  and  obtained 
the  policy.  He  did  not  disclose  the  fact  that  property 
was  burned  when  he  received  the  policy,  and  the  defend- 
ant was  ignorant  of  that  fact.  Held^  that  when  defendant 
accepted  the  premium  and  delivered  the  policy  the  agree- 
ment to  insure  was  complete  and  ratified  as  of  the  10th 
day  of  January,  1871.  The  plaintiff  had  the  right  to  rely 
on  the  agreement,  and  was  not  bound  to  voluntarily  in- 
form the  company  of  the  fire.  Baldwin  v.  Chouteau  Ins. 
Co.  56  Mo.  151.    1874. 

§  7.  Insurance  was  applied  for  by  agent  of  the  as- 
sured, who,  upon  receipt  of  the  policy  from  a  messenger 
from  oflSce  of  the  local  agent  of  the  company,  sent  back  a 
memorandum  that  he  would  look  into  the  standing  of  the 
company,  and  after  he  was  satisfied  about  it  he  would 
settle.  He  said  also,  that  he  doubted  the  standing  of  the 
company.  In  half  an  hour  after  he  received  the  policy  he 
delivered  it  over  to  the  assured,  who  knew  nothing  of 
what  had  transpired  between  him  and  the  company's 
agent.  This  was  on  the  13th  of  November,  1872.  A 
week  later  the  mill  covered  by  the  policy  was  totally  de- 
stroyed by  fire.  The  policy  provided  that  it  should  not 
be  liable  until  the  premium  was  paid,  and  it  contained  an 
acknowledgment  in  usual  form  of  its  receipt.  After  the 
fire  both  the  assured  and  his  agent  tendered  the  premium 


CONSUMMATION  OF  CONTRACT. 


ft 


the 


to  the  company's  agent,  whicb  was  declined,  ffeld,  that 
there  was  no  acceptance  of  the  policy  prior  to  the  fire 
sufficient  to  make  a  valid  contract  of  the  insurance,  and 
that  the  condition  for  prepayment  of  the  premium  re- 
mained in  force,  and  the  company  was  entitled  to  notice 
of  acceptance  and  prepayment  of  the  premium  before  the 
contract  of  insurance  was  complete.  And  where  there 
has  been  no  waiver,  as  in  this  case,  policy  cannot  be  ac* 
cepted  and  the  premium  tendered  after  a  fire.  Millville 
Ins.  Co.  v.  CoUerd,  9  Vroom,  N.  J.  L.  R.  480.    1875. 

§  8.  If  assured  leaves  policy  in  the  hands  of  the 
agents  of  the  company,  subject  to  the  order  and  control  of 
a  third  person,  it  is  a  sufficient  delivery,  although  such 
third  party  has  not  actually  called  for  or  received  it. 
Home  Ins.  Co.  v.  Curtis,  32  Mich.  402.     1875. 

§  9.  The  acceptance  by  assured  of  rate  demanded  by 
a  general  agent  through  a  local  agent  having  no  authority 
to  issue  policy,  other  particulars  being  satisfactory  to  the 
general  agent,  binds  the  company  from  the  time  of  such 
acceptance.     Eames  v.  Home  Ins.  Co.  4  Otto,  621.     1876. 

§  10.  Application  was  made  to  agents  who  had  au- 
thority to  issue  policies  of  the  Kevere  Company,  and  ta 
temporarily  bind  the  defendant.  Without  knowledge  of 
the  assured  they  wrote  a  policy  in  the  Revere,  and  notified 
the  home  office.  This  was  on  November  1st,  1875.  On 
the  following  day  the  Revere  declined  the  risk,  of  which 
notice  was  received  by  the  agents  by  letter  about  six 
o'clock  in  the  evening.  They  immediately  decided  to 
place  the  risk  at  once  in  defendant,  and  memorandum 
was  duly  made  and  entered  to  that  effect.  The  Re- 
vere policy  was  not  then  delivered.  Fire  occurred  be- 
tween 11  and  12  o'clock,  night  of  November  2d.  The 
Revere  policy  was  subsequently  delivered  to  assured  by 
clerk  of  company's  agents  in  their  absence.  It  appeared 
that  by  an  arrangement  with  the  Revere,  that  plaintiff 
only  claimed  to  hold  one  of  the  companies.  The  Revere 
policy  contained  usual  clause  as  to  cancellation  on  notice, 
&c.  Held,  that  the  Revere  policy  became  a  binding  con- 
tract upon  its  execution,  and  that  it  could  not  be  termi- 


73 


CONSUMMATION  OF  OONTBACT. 


Ul 


nated  without  notice  to  the  assured,  and  that  it  was  there- 
fore liable  for  the  loss,  and  defendant  was  discharged  from 
liability,  because  its  contract  was  to  take  effect  only  on 
termination  of  the  Revere  insurance.  Massasoit  Steam 
Mills  V.  Western  Assur.  Co.  125  Mass.  110.     1878. 

§  11.  An  insurance  broker  was  in  the  habit  of  ob- 
taining insurance  in  defendant,  for  which  one  Swinson 
was  the  agent.  The  course  of  business  was  for  the  for- 
mer to  accept  the  risk,  take  the  premium,  and  subse- 
quently obtain  a  policy  from  the  latter  as  of  date  when 
risk  was  accepted.  On  3d  of  November,  1876,  plaintiff 
obtained  insurance  on  his  property  from  the  broker,  and 
paid  him  the  premium.  Same  day  latter  sent  risk  to 
Swinson.  On  the  6th  Swinson  sent  policy  to  broker,  who 
delivered  it  to  plaintiff.  Property  was  destroyed  by  fire 
on  the  4th.  All  parties  were  ignorant  of  this  until  after 
policy  was  delivered.  Held,  that  the  insurance  took  effect 
on  3d  of  November,  by  ratification  of  defendant's  agent. 
Collins  V.  Phoenix  Ins.  Co.  14  Hun,  534.     1878. 

§  12.  Company  was  incorporated  24th  of  July,  1876, 
and,  on  the  7th  of  August  following,  assured  made  appli- 
cation for  insurance  upon  his  house,  subject  to  approval  of 
board  of  directors.  This  was  delivered  to  one  of  the 
directors  on  the  9th  of  August,  and  on  the  12th  he  deliv- 
ered it  to  the  secretary  or  laid  it  on  his  desk.  A  quorum 
of  the  directors  was  not  present.  On  the  19th  of  same 
month  a  meeting  of  the  board  was  held  for  transaction  of 
fecial  business,  and  no  action  was  taken  at  that  time 
upon  the  application.  On  the  30th  of  August  building 
was  destroyed  by  fire.  On  25th  of  September,  being  the 
first  regular  meeting  of  the  executive  committee,  the  ap- 
plication was  rejected,  and  this  action  was  approved  by 
the  board.  Jleid,  that  there  was  no  contract  of  insurance. 
Harp  V.  Grangers'  Mut.  Ins.  Co.  49  Md.  307.    1878. 

§  13.  Agent  to  take  applications  cannot  bind  com- 
pany by  any  contract  of  insurance.  To  bind  company 
there  must  be  ftn  acceptance  of  the  proposition  contained 
in  the  application.  Walker  v.  Farmers' Ina  Co.  61  Iowa, 
679.     1879. 


OOKSUMHATION  OF  CONTBAOT. 


73 


ere- 

•om 

on 

am 


§  14.  A  policy  of  reinsurance  was  to  cover  such  ships 
or  vessels  against  loss  by  fire,  to  extent  of  £50,000,  as 
might  be  declared  at  and  from  certain  ports  therein  men- 
tioned. It  provided  that  it  was  to  be  supplemented  by 
further  policies  on  like  terms,  should  the  amount  not 
prove  sufficient  for  the  year's  transactions.  Term,  one 
year  from  October  1,  1876.  Declarations  being  in  excess 
of  the  policy  on  the  9th  of  July  following,  defendant  is- 
sued a  second  policy  for  same  amount  and  same  terms. 
On  the  7th  of  June  plaintiff  had  insured  a  ship  called  the 
"Hampden,"  which  was  destroyed  on  the  18th  of  Septem- 
ber. On  the  25th  of  October  a  third  policy  was  issued 
by  defendant,  same  as  pending.  On  the  2d  of  November 
plaintiffs  declared  the  Hanopden,  and  claimed  a  total  loss. 
At  time  third  policy  was  effected  plaintiff's  knew  that  the 
vessel  was  lost.  It  was  admitted  that  the  Hamnden  did 
not  come  under  the  first  two  policies,  which  were  by  pre- 
vious risks  exhausted,  when  plaintiffs  insured  it,  but  must 
come  under  the  third  policy,  if  any.  It  was  admitted, 
also,  that  there  was  a  usage  to  effect  that,  in  case  of  open 
policies  on  ships  to  be  declared,  the  policy  attaches  to  the 
goods  as  soon  as  and  in  the  order  in  which  they  are  sup- 
plied, in  which  order  the  assured  is  bound  to  declare  them, 
and  in  case  of  mistake  as  to  the  order  of  shipment,  assured 
may  rectify  the  declaration,  even  after  a  loss.  Held^  that 
defendant  was  bound  by  such  usage,  that  plaintiff  could 
rectify  his  declarations,  and  that  defendant  was  liable. 
Imperial  Marine  Ins.  Co.  v.  Fire  Ins.  Co.  4  L.  R  C.  P.  Div. 
166.     1879. 

Bee  Agent,  §  33.  By  Laws  and  Conditions,  7.  Estoppel,  29.  Mutual 
Gompanj,  89,  127.  Parol  Contract,  32.  Place  of  Making  Contract,  3.  Re- 
formation, 17.    Renewal,  6. 


M 


CONTRIBUTION. 

§  1.  When  policy  provides  that  company  shall  be 
liable  for  only  two-thirds  of  the  cash  value,  its  liability 
Tinder  the  contribution  clause  is  limited  by  such  amount. 
Lycoming  Mut.  Ins.  Co.  v.  Stocklomn,  3  Grant  Cas.  207. 
1856. 

§  2.  Contribution  clause  has  no  application  where  the 
loss  exceeds  the  total  amount  of  insurance.  Phillips  v. 
Perry  County  Ins.  Co.  7  Phil.  Rep.  673.    1870. 

§  3.  Plaintiff  obtained  policy  in  suit  for  $3,000  on 
his  stock  contained  in  a  specified  building,  other  insurance 
being  permitted,  and  policy  containing  the  usual  contribu- 
tion or  apportionment  clause.  At  time  of  fire  plaintiff 
held  fourteen  other  policies,  issued  by  various  companies, 
to  the  amount  of  $47,500,  covering  same  property,  and  a 
large  amount  of  ottier  property.  All  the  property  insured 
and  covered  by  the  fifteen  policies  was  destroyed  by  fire. 
Value  of  the  entire  property,  $88,788  83.  Value  of  prop- 
erty covered  by  defendants'  policy,  $16,305  89.  Trial 
court  directed  verdict  for  plaintiff  for  full  amount  of  his 
policy,  $3,000.  Held,  that  there  was  a  total  loss  of  the 
whole  subject  insured  by  all  the  policies,  and  that  the 
other  insurance  was  not  such  as  to  require  any  apportion- 
ment.   Ogden  V.  East  River  Ins.  Co.  50  N.  Y.  388.    1872. 

§  4.  Where  plaintiff  obtained  a  floating  policy  upon 
merchandise  in  any  of  the  warehouses  in  New  York, 
Brooklyn  and  Jersey  City,  which  contained  an  average 
clause  to  the  effect  that  if  the  merchandise  should,  at  the 
time  of  any  fire,  be  insured  by  any  specific  insurance,  then 
"  this  policy  shall  not  extend  to  cover  the  same,  excepting 
only  as  far  as  relates  to  any  excess  of  value  beyond  the 
amount  of  such  specific  insurance,  which  said  excess  is 
declared  to  be  under  the  protection  of  this  policy," 
and  fire  occurred  in  warehouse  in  which  there  was  mer- 
chandise to  amount  of  $386,026,  and  covered  by  specific 
insurance  to  amount  of  $324,000.     Amount  of  the  loss 


i 


CONTRIBUTION. 


m 


$274,192  46.  Held,  policy  attached  to  and  protected  only 
that  portion  of  the  value  which  was  in  excess  of  the  spe- 
cific insurance,  and  that  the  whole  loss  was  intended  to  be 
thrown  upon  the  specific  insurance,  unless  it  exceeded  the 
amount  of  them,  and  then  the  excess  was  intended  to  fall 
upon  the  floating  policy.  Fairchild  v.  Liverpool  &  L.  Ins. 
Co.  61  N.  Y.  65.     1872. 

§  5.  Policies  were  taken  out  by  the  Baltimore  Ware- 
house Company  in  its  name  upon  cotton  stored  by  factor, 
who  had  obtained  other  insurance  covering  the  same  prop- 
erty in  other  companies  in  his  name,  loss  being  made  paya- 
ble to  the  Warehouse  Company  to  secure  advances.  Heldy 
double  policies,  and  the  companies  issuing  them  bound 
to  contribute  their  respective  propoi-tion ,  of  the  loss. 
Hough  V.  People's  Ins.  Co.  36  Md.  398.  1872.  s.  p. 
Home  Ins.  Co.  v.  Baltimore  Warehouse  Co.  3  Otto,  527. 
1876.  Bobbins  v.  Firemen's  Fund  Ins.  Co.  16  Blatch. 
122.     1879. 

§  6.  Where  a  specific  item  of  property  is  insured  by 
one  policy,  and  the  same  is  covered  by  another  policy, 
which  also  includes  other  property,  the  latter  policy  can- 
not be  thrown  wholly  out  of  view,  but  must  constitute 
other  insurance  within  the  meaning  of  the  apportionment 
clause.  Ogden  v.  East  River  Ina.  Co.  50  N.  Y.  388.  1872. 
Overruling,  Howard  Ins.  Co.  v.  Scribner,  5  Hill,  298. 

§  7.  Property  specifically  covered  by  a  certain  policy, 
and  not  in  building  when  a  prior  policy  was  obtained,  in- 
suring same  kind  or  class  of  property  generally,  cannot  be 
claimed  to  be  covered  by  the  latter  so  as  to  entitle  the 
former  to  an  apportionment  of  the  loss.  Mauger  v.  Hol- 
yoke  Mut.  Fire  Ins.  Co.  1  Holmes,  287.     1873. 

§  8.  Where  policy  is  issued  by  four  companies  in 
name  of  "  Underwriters'  Agency,"  but  provides  that  each 
shall  be  liable  for  one-fourth  of  tiie  loss  "  in  the  same  man- 
ner and  not  otherwise,  as  if  each  had  issued  its  separate 
policy  for  such  proportionate  amount,"  the  contract  is  joint, 
and  a  jury  (under  Georgia  Code)  may  by  their  verdict  ap- 
portion the  loss  to  each  as  piovided  by  the  policy.  Suth- 
erlin  v.  Underwriters'  Agency,  53  Ga.  442.     1874. 


76 


CONTRIBUTION. 


§  9.  Policy  contained  usual  apportionment  clause  in 
case  of  other  insurance.  Plaintiff  had  a  policy  in  another 
company,  which  policy  contained  clause  making  it  void  in 
event  of  other  insurance  being  obtained  without  its  con- 
sent. No  notice  or  consent  was  given  in  respect  to  de- 
fendant's policy.  Upon  notice  of  loss  to  other  company 
the  president  declared  its  policy  to  be  void  on  account  of 
other  insurance.  No  proofs  of  loss  were  served,  and  no 
measures  taken  to  collect.  Held,  plaintiff  was  not  bound 
to  continue  the  other  insurance,  that  it  was  competent  for 
him  to  cancel  it  without  defendant's  assent,  and  as  by  its 
terms  it  became  wholly  "  void,"  there  was  no  obligation  to 
make  an  attempt  to  enforce  it.  That  there  being  no  other 
insurance  in  force,  defendant  was  not  entitled  to  an  appor- 
tionment and  was  liable  for  full  amount.  Hand  v.  Wil- 
liamsburg City  Fire  Ins.  Co.  57  N.  Y.  41.     1874. 

§  10.  Responsibilitv  to  contribute  to  a  loss  begins 
when  the  insurance  has  oeen  effected  and  terminates  when 
the  policy  expires.  Planters'  Ins.  Co.  v.  Comfort,  60  Miss. 
662.     1874. 

§  11.  Defendant  issued  8  policies,  $500  each,  on  live 
stock,  each  containing  the  usual  clause  providing  for  an  ap- 
portionment or  contribution  in  case  of  loss.  A  fire  oc- 
curred whereby  two  steers  of  the  value  of  $336,  and  one 
bull  of  the  value  of  $2,000,  were  destroyed.  At  the  time 
of  the  loss  the  assured  had  other  insurance  in  the  North 
Missouri  Ins.  Co,,  for  the  sum  of  $1,6G6  67  on  live  stock, 
no  one  animal  to  be  valued  at  more  than  $500.  He  had 
also  another  policy  in  the  Continental  Ins.  Co.,  for  the 
same  amount  on  live  stock,  not  to  exceed  $500  on  any  one. 
Held,  that  the  loss  should  be  apportioned  as  follows : 

On  steers.  On  Bull.  Total. 

Continental $115  83  (500  00  |G15  83 

North  Missouri 115  83  172  42  288  25 

Madison  Mutual 104  34  1,327  58  1,431  9^ 

Totals (336  00         12,000  00         $2,336  00 

And  that  defendant  was  therefore  liable  for  the  sura 
of  $1,431  92.  Sherman  v.  Madison  Mutual  Ins.  Co.  39 
Wis.  104.     1875. 


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CONTRIBUTION. 


77 


§  12.  Building  was  occapied  by  assured  as  shoe 
dealers  and  manufacturers.  The  first  and  second  floors 
were  used  as  salesrooms,  and  the  third  and  fourth  as  a 
factory.  Insurance  had  been  effected  as  follows :  upon  the 
stock  in  the  whole  building,  including  the  third  and  fourth 
floors, 

Royal  Ins.  Co $10,000 

Lond.,  Liv.  and  Globe 6,000 

Franklin 5,000 


Total  on  stock  in  the  whole  building $20,000 

Upon  stock  on  the  third  and  fourth  floors, 

Royal  Ins.  Co 8,000 

Upon  machinery,  &c.,  on  the  third  and  fourth  floors. 

Royal  Ins.  Co 2,000 

There  was  a  fire  by  which  the  loss  was  ascertained  as  follows : 

Loss  on  stock  in  the  salesrooms $29,086  76 

On  the  third  and  fourth  floors 8,840  73 

On  machinery,  &c.,  on  third  and  fourth  floors,     2,500  00 
The  excess  oi  loss  on  stock  in  the  salesrooms 

over  the  total  amount  insured   by  the 

general  policies  was 9,986  76 

The  excess  of  loss  on  stock  on  third 

and  fourth  floors  exceeded  the 

amount  of  the  special  policy. . .  $840  73 
The  loss  on  the  machinery  exceeded 

the  amount  of  the  insurance  by    500  00 
The  policy  of  the  Royal  Ins.  Co.  contained 

the  usual  contribution  clause. 

The  adjustment  of  the  loss  under  the  specific  policy  for 
$8,000  on  stock  on  third  and  fourth  floors  was,  upon  the 
principle  claimed  by  the  assured  to  be  correct,  as  follows : 

The  loss  on  stock  on  third  and  fourth  floors  was . .  $8,840  73 

Royal $10,0U0  gen.  pays,  $3,157  40 

Lond., Liv.  &  Globe..    5,000    «         «      1,578  70 

Franklin 6,000    "         '«      1,578  70 

Royal 8,000  specific  "      2,525  93 

Royal  paid  $2,525  93  to  the  assured  and  submitted 
the  question  of  its  liability  for  the  balance  of  its  specific 
policy  to  the  court.  IPld^  that  the  entire  loss  exceeded 
the  entire  insurance  of  all  the  policies  general  and  special, 
and  that  the  general  and  special  policies  covered  in  fact 
different  subjects,  and  that  the  loss  under  each  was  more 


78 


CONTRIBUTION. 


I'  'I 


i  1' 


than  sufficient  to  exhaust  the  entire  amount.  A  rule  of  aver- 
age, which  would  exempt  the  general  policies  from  a  portion 
of  their  peculiar  loss  l)elow  in  order  to  carry  it  to  the  re- 
lief of  the  special  policy  above  and  thus  to  exonerate  each 
from  a  portion  of  a  total  loss  of  different  subjects,  would 
directly  contradict  the  spirit  and  intent  of  the  contract. 
HeU^  therefore,  that  the  assured  was  entitled  to  the  bal- 
ance  of  the  $8,000.  Royal  Ins.  Co.  v.  Roedel,  78  Pa.  19. 
1875. 

§  13.  The  liability  of  company  under  a  clause  pro- 
viding that  it  shall  not  be  responsible  for  "  any  greater 
portion  of  the  loss  or  damage  sustained  than  the  amount 
hereby  insured  shall  have  to  the  whole  amount  of  insur- 
ance," is  several,  not  joint;  although  assured  may  have  re- 
ceived from  another  company  more  than  three-fourths  of  the 
value  to  which  extent  of  the  insurance  is  limited,  the  other 
is  still  liable  for  its  proportion  of  the  value  in  full  accord- 
ing to  its  contiact.  Liability  of  company  in  this  particular 
must  be  determined  by  state  of  facts  at  time  of  loss.  Bard- 
well  V.  Conway  Ins.  Co.  118  Mass.  4G5.     1875. 

§  14.  Policy  provided  that  the  assured  should  be  en- 
titled to  recover  in  case  of  loss  only  the  proportion  which 
the  sum  insured  bore  to  the  whole  amount  of  all  the  insur- 
ances which  were  on  the  property.  There  were  three  poli- 
cies, two  besides  that  of  the  defendant.  In  one  issued  by 
the  iEtna,  the  loss  was  made  payable  to  a  mortgagee.  The 
jury  were  directed  to  assess  the  damages  on  the  basis  that 
there  was  but  one  other  policy  leaving  out  of  the  account 
entirely  the  policy  in  the  ^tna  company.  Held^  correct, 
that  the  policy  in  the  ^tna  was  upon  a  distinct  and  sepa- 
rate interest  in  the  property  from  that  upon  which  the  de- 
fendant's policy  was  written ;  that  insurance  was  upon  the 
interest  of  the  mortgagees,  while  the  one  in  suit  was  on 
tbe  equity  of  redemption.  The  jury  were  properly  directed 
to  apportion  the  loss  between  the  two  companies  which 
had  iuc'iranceson  the  same  interest  according  to  the  amount 
of  the  respective  policies,  taking  as  a  basis  not  the  whole 
value  of  the  property,  but  the  value  of  the  plaintiff's  in- 
surable interest,  that  is,  of  his  interest  as  owner  of  the  equity 
of  redemption.    Tuck  v.  Ins.  Co.  56  N.  H.  326.     1876. 


j: 


i 


GONTBIBUTION.  7p 

§  15.  Other  insurance  to  entitle  company  to  appor- 
tionment of  loss  must  be  upon  same  interest.  Insurance 
by  a  mortgagee  upon  his  interest  is  not  such  other  insur- 
ance. Adams  v.  Greenwich  Ins.  Co.  9  Hun,  45.  i876. 
Affi'd  70  N.  Y.  166.  s.  p.  Johnson  v.  N.  B.  and  M.  Ins. 
Co.  1  Holmes,  117.     1872. 

8  16.  When  policy  is  obtained  by  wharfinger  upon 
gooas  his  own  or  held  by  him  in  trust  or  on  commission 
and  for  which  he  is  responsible,  and  there  is  another  policy 
obtained  by  the  actual  owners  of  goods  stored  with  him 
upon  their  interests  exclusively,  it  is  not  a  case  of  other  or 
double  insurance  requiring  an  apportionment  of  loss. 
N.  B.  &  Mercantile  Ins.  Co.  v.  Li  v.,  Lond.  &  Globe  Ins. 
Co.  5  L.  R.  Ch.  Div.  569.     1877. 

§  17.  Policy  was  made  payable  to  a  mortgagee,  and 
contained  provision  that  "  no  sale  or  transfer  of  the  prop- 
erty hereby  insured  shall  vitiate  the  right  of  the  mort- 
gagee to  recover  in  case  of  loss."  Assured  subsequently 
made  a  second  mortgage  which  was  foreclosed,  and  the 
purchaser  obtained  a  policy  insuring  his  interest.  Defend- 
ant claimed  that  it  was  liable  for  only  its  proportion  of 
the  loss  according  to  contribution  clause  in  its  policy. 
Held,  that  the  company,  by  its  special  contract  with  the 
plaintiff,  had  agreed  tnat  its  right  to  recover  should  not 
be  affected  by  any  of  the  natural  consequences  or  inci- 
dents of  a  sale  and  transfer,  and  that  the  loss  being  less 
than  the  debt  there  could  be  no  apportionment.  City 
Five  Cent  Sav.  Bank  v.  Penn  Ins.  Co.  122  Mass.  165. 
1877. 

§  18.  The  provision  in  a  policy  for  contribution  re- 
lates to  existing  insurance  at  the  time  of  the  fire,  and  can- 
not be  construed  so  as  to  impose  any  obligation  on  the 
part  of  the  insured  to  keep  in  force  policies  held  by  him 
at  the  time  the  one  in  suit  was  obtained.  Quarrier  v. 
Peabody  Ins.  Co.  10  W.  Va.  507.     1877. 

§  19.  Policy  was  issued  in  the  firm  name  of  Verdier 
<fe  Brown,  for  one  year  from  the  16th  of  May,  1874.  Ifc 
contained  the  usual  clause  providing  for  an  apportionment 


I 


Im 


80 


€0NTB1BUTI0N. 


of  the  loss.  On  the  first  of  May,  1 873,  John  Verdier,  then 
alone  in  business,  had  taken  out  a  policy  in  another  com- 
pany for  one  year  upon  the  same  property.  It  appeared 
in  evidence  that  Mr.  Verdier  had  taken  Mr.  Brown  into 
partnership  with  him  about  a  month  before  the  fire.  It 
was  then  agreed  between  them  that  all  fire  policies  should 
be  transferred  to  the  firm ;  that  the  policy  in  suit  was 
transferred  accordingly,  but  that  the  other  was  not  as- 
signed, for  the  reason  that  on  seeking  for  the  agent,  in  or- 
der  to  accomplish  that  object,  it  was  found  that  he  was 
not  at  home.  It  also  appeared  that  adjustment  of  the  loss 
was  begun  before  five  days  after  the  fire,  and  was  con- 
cluded about  two  weeks  after,  and  that  the  agents  of  the 
defendant  and  of  the  Underwriters'  Association  and  also 
of  the  other  company  participated  in  it.  After  the  loss 
Mr.  Verdier  assigned  the  policy  of  the  other  company  to 
the  Hanover  Company  of  New  York,  being  one  of  the 
Underwriters'  Association,  and  received  therefor  the 
amount  he  claimed.  The  other  policy  expired  on  the 
first  of  May,  and  the  premium  for  renewal  was  not  paid 
until  the  day  of  the  fire,  and  just  after  that  event,  wnich 
happened  the  4th  of  June,  1874.  Held,  that  the  joining 
of  the  other  company  in  the  adjustment,  and  the  want  of 
objection  on  their  part  to  the  want  of  a  formal  assign- 
ment, were  agreeing  circumstances  with  the  others  to  show 
that  such  other  company  and  the  assured  were  in  actual 
concurrence,  that  the  policy  was  a  living  one  existing  in 
favor  of  the  firm  »»nd  as  an  insurance  upon  their  stock,  and 
therefore  that  plaintiff  in  error  was  entitled  to  an  appor- 
tionment of  the  loss  according  to  the'  clause  in  its  policy ; 
Liv.,  Lond.  <&  Globe  Ins.  Co.  v.  Verdier,  33  Mich.  138, 
1876  ;  and  this  result  is  not  affected  by  the  change  of  in- 
terest, policy  in  suit  stipulating  that  in  adjusting  a  loss 
existing  policies  should  be  taken  into  account,  even 
though  forfeited,    s.  c.  35  Mich.  395.     1377. 

§  20.     Contribution  or  apportionment  clause  enforced. 
Harrington  v.  Fitchburg  Ins.  Co.  124  Mass.  126.     1878. 

See  Description.     Mortgagor  and  Mortgagee,  $  21,  30,  83,  42.    Mutual 
Company,  118. 


COVENANT  TO    INSURE. 

§  1.  A  building  association  authorized  to  eflfect  insur- 
ance, having  agreed  to  do  so,  is  liable  for  a  breach  of  the 
agreement.  But  a  particular  company  being  deemed  to 
have  been  selected  under  right  reserved,  although  con- 
tract was  not  consummated,  it  was  Held,  that  the  associa- 
tion was  liable  to  the  extent  that  a  policy  in  that  compa- 
ny would  have  afforded  indemnity,  and  that  the  company 
being  insolvent,  whatever  dividend  it  might  be  able  to 
pay  would  bo  the  criterion  for  ascertaining  the  damages. 
Chicago  Build.  Soc.  v.  Crowell,  65  111.  453.     1872. 

Bee  Goods  in  Trust,  |  4. 


DAMAGES. 

§  1.  Referee  or  jury  are  not  bound  to  accept  either 
of  two  amounts  established  by  evidence  of  the  value  of 

?oods  destroyed,  but  may  find  a  sum  between  the  two. 
Jnger  v.  People's   Ins.  Co.  4  Daly,  96.     1871. 

§  2.  Tlie  amount  paid  by  an  insurance  company  to 
the  owner  and  assured,  cannot  be  availed  of  as  a  defense 
or  in  mitigation  of  damages,  in  a  suit  brought  by  the  as- 
sured against  party  where  negligence  caused  the  loss. 
Harding  v.  Town  of  Townshend,  1  Ins.  L.  J.  685.  1871.  Vt. 

§  3.  High  wines  insured  were  worth  forty-nine  cents 
per  i^ailon  without  payment  of  government  tax,  and  nine- 
ty-nnie  cents  witii  the  tax  paid.  When  burned  they  were 
stored  in  a  bonded  warehouse.  The  tax  had  not  been 
paid.  Held,  that  assured's  liability  to  the  tax  ceased  with 
destruction  of  the  property,  and  that  company  was  only 
liable  for  the  spirits  at  value  of  forty-nine  cents  per  gal- 
lon. Security  Ins.  Co.  v.  Farrell,  2  Ins.  L.  J.  302.  1872. 
III.  ^ 

Vol.  ir.-O 


fi 
El 

fell 


S2 


DAMAOBS. 


I  I 


§  4.  When  policy  limits  loss  to  two-thirds  of  the 
value,  it  is  error  to  allow  interest  upon  any  sum  in  excess. 
Rotkford  Ins.  Co.  v.  Nelson,  65  111.  415.     1872. 

§  5.  Money  boi-rowed  by  assured  from  company  and 
claim  due  under  policy  held  by  former,  constitute  a  case 
of  mutual  debt  and  credit.  Although  money  loaned  is 
not  due  at  time  bill  is  filed,  it  is  competent  for  the  as- 
sured, company  being  insolvent,  to  call  on  a  court  of 
equity  to  allow  the  set-off.  Drake  v.  Kollo,  2  Ins.  L.  J. 
935.  1872.  U.  S.  Circuit,  111.  But  treasurer  of  company 
cannot  be  allowed  to  set-off  debt  due  from  h  m  on  ac- 
count of  his  subscription  to  the  stock  against  his  losses 
under  his  policies.  Scaramon  v.  Kimball,  2  Ins.  L.  J.  775. 
1873.     U.  S.  Circuit,  111. 

§  6.  The  sum  insured  is  the  extent  of  liability,  not 
the  measure  of  assured's  claim.  111.  Mut.  Fire  Ins.  Co. 
V.  Andes  Ins.  Co.  67  111.  362.     1873. 

§  7.  Interest  begins  to  run  sixty  days  after  the  fur- 
nishing of  proofs,  from  time  loss  is  payable.  Field  v.  Ins. 
Co.  N.  A.  6  Biss.  121.  1874.  s.  p.  Knickerbocker  Ins. 
Co.  V.  Gould,  80  111.  388.     1875. 

§  8.  The  cash  value  of  building  destroyed  is  the 
value  as  it  stood  day  of  destruction,  as  compared  ivlth  s 
new  building  of  same  kind  and  dimensions.  If  1  J  T<g 
was  old  and  dilapidated  from  use  and  decay,  ita  v  ;  :■  m 
that  condition  is  what  assured  is  entitled  to  rec  ;r. 
Assured  is  not  entitled  to  original  cost  of  building,  or  to 
a  sum  sufficient  to  erect  a  new  one ;  nor  is  it  proper  to  fix 
value  by  ascertaining  difference  in  value  of  lot  with 
building  upon  it,  and  its  value  with  building  destroyed, 
^tna  Ins.  Co.  v.  Johnson,  11  Bush  (Ky.),  587.     1876. 

§  9.  The  market  value  of  goods  insured  at  the  time 
and  place  of  the  fire  is  that  which  assured  loses  by  the 
fire  and  is  the  measure  of  damage.  Fowler  v.  Old  North 
State  Ins.  Co.  74  N.  C.  89.     1876. 

§  10.  In  determining  amount  of  loss  or  damage 
itemized  valuation  should  be  considered  by  trial  court  in 


DAMAGES. 


83 


-^reference  to  gross.     Smith  v.  Excliange  Fire  Ins.  Co.  8 
Jones  &  Sp.  492.     1876. 

.  §  11.  A  company's  liability  to  pay  the  full  value  of 
building  insured  cannot  be  effected  or  reduced  by  the  fact 
that  the  building  has  been  valued  by  a  commission  ap- 
pointed for  the  purpose  of  street  improvement,  the 
assured  being  under  legal  obligations  to  accept  the  same 
and  the  building  to  be  torn  down.  Collingridge  v.  Royal 
Exchange  Assurance  Co.  L.  K.  3  Q.  B.  Div.  173.     1877. 

§  12.  The  rental  of  a  building  at  time  of  fire  may  be 
given  in  evidence  as  bearing  upon  the  question  of  loss. 
Atlantic  Ins.  Co.  v.  Manning,  3  Col.  224.     1877. 

§  13.  Property  insured  was  occupied  as  a  homestead. 
JleMf  that  the  destruction  by  fire  actually  damaged  the 
assured  to  the  amount  it  would  cost  to  restore  the  prop- 
erty to  the  condition  it  was  in  before  the  fire.  Germania 
Fire  Ins.  Co.  v.  Casteel,  7  Ins.  L.  J.  253.     1877.     111. 

§  14.  Where  policy  provides  that  loss  shall  be  paid 
within  sixty  days  after  adjustment,  and  the  company 
have  used  reasonable  efforts  to  arrive  at  an  adjustment,  it 
is  error  to  allow  interest  from  sixty  days  after  the  loss. 
Interest  can  be  allowed  only  from  judicial  demand. 
Gettwerth  v.  Teutonia  Ins.  Co.  29  La.  Ann.  30.     1877. 

§  15.  Insurance  is  but  a  contract  of  indemnity;  the 
indemnity  can  go  no  farther  than  the  interest  of  the  party 
wlio  is  indemnified,  and  if  that  interest  is  partial  and  not 
entire,  the  indemnity  does  not  cover  a  value  incident  to 
ownership.  Porter  v.  ^tna  Ins.  Co.  6  Ins.  L.  J.  928. 
1877.    U.  S.  Circuit,  Mich. 

§  16.  Where  policy  provides  that  loss  is  payable 
sixty  days  after  due  notice  and  proofs  are  furnished,  mter- 
est  becomes  due  from  that  time.  Hastings  v.  Westchester 
Fire  Ins.  Co.  73  N.  Y.  141.     1878. 

§  17.  The  Wisconsin  statute  of  1874,  which  makes 
the  amount  of  insurance  written  in  the  policy  conclusive 
of  the  value  of  the  property  at  time  of  loss,  and  fixes 


84 


DAMAGES. 


fi 


tbat  amount  as  the  measure  of  damages,  renders  all  other 
evidence  of  value  immaterial.  Bammessel  v.  Brewers* 
Fire  Ins.  Co.  7  Ins.  L.  J.  767.     1878.    Wis. 

§  18.  When  there  is  an  express  promise  to  pay 
amount  of  adjustment,  interest  commences  to  run  from  its 
making.    Home  Ins.  Co.  v.  Myer,  93  111.  271.     1879. 

§  19.  In  an  action  by  a  contractor  and  builder  upon 
a  policy  insuring  his  interest  as  such  it  is  no  defense  that 
he  failed  to  continue  proceedings  under  tlie  mechanics' 
lien  law  after  filing  notice  and  commencement  of  an  action. 
Royal  Ins.  Co.  v.  Stinson,  10  Ins.  L.  J.  687.  1880.  U.  S. 
Sup.  Ct. 

§  20.  The  ri^ht  to  interest  was  not  lost  or  suspended 
during  the  contmuation  of  the  civil  "war.  Portsmouth 
Ins.  Co.  V.  Reynolds,  32  Grat.  613.     1880. 

§  21.  Jury  having  found  that  no  portion  of  the 
brick  walls  of  the  building  insured  remaining  after  the 
fire  could  be  used  in  rebuilding,  that  the  foundations  so 
remaining  were  not  sufficient  to  support  a  building  of  the 
weight  and  dimensions  of  the  one  burned,  that  the  ex- 
pense of  removing  the  worthless  fragments  of  the  old 
building  would  at  least  equal  the  value  of  all  the  material 
left  after  the  fire,  and  that  such  materials  were  worth  less 
than  the  cost  of  getting  them  out  of  the  burned  building; 
Held^  that  these  findings  show  that  the  building  in  ques- 
tion was  wholly  destroyed  within  the  meaning  of  that 
terna  as  used  in  the  statute,  chap.  347,  1874.  Harriman  v. 
Queen  Ins.  Co.  49  Wis.  71.    1880. 

§  22.  Damages  on  property  specifically  insured  can- 
not exceed  amount  named.  Dacey  v.  Agricultural  Ins. 
Co.  21  Hun,  83.     1880. 

See  Agent,  §  24,  52.  Arbitration,  8.  Covenant  to  Insure,  1.  Evidence, 
3,  4,  5,  9,  20,  21,  23,  28.  31,  34,  36,  46.  48,  49,  50,  52,  65,  60,  67,  74,  76,  81. 
Insurable  Interest,  11,  14,  20,  46,  47,  48.  Interest  in  Policy,  2,  9,  24.  Mort- 
it^^l  ""1?  Mortgagee,  1,  3,  4,  10,  11,  19,  20,  21,  26,  42.  Mutual  Company, 
87,  70.  Parol  contract,  27.  Proofa  of  Loss,  25.  Questions  for  Court  and 
Jury,  11.  Rebuild,  Ac,  4,  6,  8.  Re-Insurance,  13.  Risk,  14.  Usage  or 
Custom,  2.    Valued  Policy,  3.  '  »  e 


DEFINITIONS. 


§  1 .  The  term  gross  negligence,  as  used  in  a  condi- 
tion exempting  from  loss  on  tnat  account,  is  the  want  of 
that  diligence  which  even  careless  men  are  accustomed  to 
exercise.    Lycommg  Ins.  Co.  v.  Barringer,  73  111.  230. 

1874. 

§  2.  Insurance  is  a  contract  of  indemnity  and  it  ap- 
pertains to  the  person  or  party  of  the  contract  and  not 
the  thing  which  is  subjected  to  the  risk  against  which  its 
owner  is  protected.  Cummings  v.  Ins.  Co.  55  N.  H.  457. 
1875. 

§  3.  The  word  "  contiguous  "  means  in  close  proxim- 
ity. A  building  located  fifty  feet  from  another  would  not 
be  contiguous  to  the  latter.  Arkell  v.  Commerce  Ins.  Co. 
69  N.  Y.  191.     1877. 

§  4.  An  insurance  policy  is  a  mere  contract  of  indem- 
nity against  loss  of  property,  and  not  an  instrument  of 
commerce  within  the  meaning  of  the  United  States  Con- 
stitution. Ins.  Co.  of  N.  A.  V.  The  Commonwealth,  87 
Pa.  173.     1878. 


DESCRIPTION, 


§  1.  When  assured  accepts  policy  without  objection, 
or  attempt  to  have  any  mistake  corrected,  he  cannot  re- 
cover if  the  description  cannot  be  applied  to  the  property 
burned.  Goddard  v.  Monitor  Ins.  Co.  108  Mass.  56. 
1871. 

§  2.  An  agent,  knowing  location,  in  writing  policy 
made  a  mistake  in  writing  southwest  corner  ot  Second 
and  Vine  instead  of  "  Elm "  street.  Building  was  de- 
scribed as  being  occupied  bv  assured.  Jleldj  that  plaintiff 
could  recover  upon  the  policy  and  there  was  no  necessity 


DESGBIPTIOir. 


i'^l 


■i- ' 


l!    liil ' 


of  applying  for  reformation.    Am.  Cent.  Ins.  Co.  v.  Mc- 
Lanathan,  11  Kans.  533.     1873. 

§  3.  The  fact  that  the  assured  calls  herself  Connor 
instead  of  O'Connor  is  immaterial  if  she  was  known  by 
both  names  and  identity  is  clearly  made  out.  Hibernia 
Ins.  Co.  V.  O'Connor,  29  Mich.  241.     1874. 

§  4.  When  goods  are  represented  and  described  in 
policy  as  being  in  a  "  store,"  the  fact  that  they  are  con- 
tained in  a  lodging  and  boarding  house  or  .tavern  is  a  mis- 
representation avoiding  the  insurance.  In  such  a  case  the 
distinction  between  a  tavern  and  a  hotel  is  without  any 
difference.  Prudhomme  v.  Salamander  Fire  Ins.  Co.  27 
La.  Ann.  695.    1876. 

§  5.  The  phrase  **  a  three  story  granite  building  "  ap- 
plies to  a  building  with  a  granite  front  only,  and  three 
stories  high  in  front  and  rear,  although  only  one  story 
high  in  the  middle.  Medina  v.  Builders'  Mut.  Fire  Ins. 
Co.  120  Mass.  225.     1876. 

§  6.  Property  being  described  as  contained  in  a  "  two 
story  brick  building,"  there  is  no  such  misdescription  as 
would  avoid  it,  the  building  being  two  stories  in  front 
only  and  one  story  in  the  rear.  Carr  v.  Hibernia  Ins.  Co. 
2  Mo.  App.  466.     1876. 

§  7.  If  there  is  enough  of  the  description  true  to 
correct  a  mistake  in  the  number  of  the  block  insured  by 
construction  it  does  not  affect  the  validity  of  the  contract. 
Ins.  Co.  v.  Lewis,  48  Texas,  622.  1878.  Texas  Ins.  Co. 
V.  Stone,  49  Id.  4.     1876. 

See  Estoppel,  §  13,  28.  Evidence,  2,  25,  26,  42,  48,  83.  Mutual  Com- 
pany, 49.  Reformation,  11.  Risk,  2,  4,  6,  8,  10,  12,  13.  Warranty  and 
Representation,  48.    YiThat  property  is  covered,  20. 


Me- 


la 
con- 
mis- 
the 
any 

27 


DISTANCE  OP  OTHER  IJUILDINGS. 

§  1.  The  words  "standing  detached"  cannot  be  lim- 
ited in  number  of  feet  by  evidence  of  custom  and  under- 
standing among  insurance  companies,  unless  it  can  be  also 
shown  that  the  assured  had  knowledge  or  notice  of  such 
custom.     Hill  V.  Hibernia  Ins.  Co.  10  Hun,  26.     1877. 


Bee  Application,  §  4. 
Representation,  26,  109. 


Concealment,  11.     Definitions,  8.     Warranty  and 


ENCUMBRANCE. 

§  1.  When  there  is  nothing  in  the  policy  requiring 
disclosure  of  encumbrances,  their  materiality  may  be  prop- 
erly left  to  the  jury.  Perkins  v.  Equitable  Ins.  Co.  4 
Allen,  N.  B.  562.     I860. 

§  2.  A  judgment  lien  constitutes  an  encumbrance. 
Bowman  v.  Franklin  Fire  Ins.  Co.  40  Md.  620.     1874. 

§  3.  Assured  being  required  to  state  encumbrances  by 
terms  of  policy,  there  being  no  written  application,  his 
failure  to  disclose  a  mortgage  covering  the  insured  prop- 
erty, avoids  the  insurance.  Beck  v.  Hibernia  Ins.  Co.  44 
Md.  95.     1875. 

§  4.  A  condition  providing  that  if  the  insured  prop- 
erty should  be  encumbered  without  notice  and  consent,  it 
should  be  void,  is  both  valid  and  reasonable,  and  will  be 
enforced.  Fuller  v.  Madison  Mut.  Ins.  Co.  36  Wis.  599. 
1875. 


5. 


Semhle  that  the  validity  of  a  mortgage  may  be 
tried  and  determined  in  a  suit  to  recover  the  insurance, 
company  relying  upou  its  existence  to  sustain  their  de- 
fense.    Lycoming  Ins.  Co.  v.  Jackson,  83  111.  302.     1876» 


m 

m 

m 
I 


88 


ENCUMBRANCE. 


I 


31 


li 


§  6.  Policy  provided  that  if  the  property  should  be 
encumbered  by  a  mortgage,  judgment,  or  otherwise,  and 
that  if  the  same  should  be  so  encumbered  it  must  be  so 
represented  to  the  company  in  the  application,  otherwise 
the  policy  should  be  void.  There  was  a  mortgage  at  the 
time  of  the  issue  of  the  policy  of  $400.  There  was  a  ques- 
tion in  the  application  in  regard  to  encumbrance,  which 
did  not  appear  to  have  been  answered,  although  the  word 
"no"  appeared  there  written  in  pencil,  but  there  was  no 
evidence  that  the  assured  had  either  written  or  authorized 
it.  ITeldf  that  plaintiff  could  not  recover.  Kennedy  v. 
Agricultural  Ins.  Co.  1  Russel  &  C.  N.  8.  483.     1876. 

§  7.  Company  sending  money  by  letter  after  a  loss  to 
a  mortgagee  operates  as  a  written  consent  to  the  encum- 
brance created  by  the  mortgage.  Ilazzard  v.  Canada  Agri- 
cultural Ins.  Co.  39  Up.  Can.  Q.  B.  419.     1876. 

§  8  The  existence  of  an  encumbrance  is  not  a  fact  or 
circumstance  in  regard  to  the  condition,  situation,  value  or 
risk  of  the  property.  Samo  v.  Gore  District  Mut.  Fire 
Ins.  Co.  1  Tupper,  545.     1877.     Rev'g  26  C.  P.  405. 

§  9.  A  vendor's  lien  for  unpaid  purchase  money  is  an 
encumbrance.  Chatillon  v.  Canadian  Mut.  Ins.  Co.  27  Up. 
Can.  C.  P.  450.     1877. 

§  10.  Policy  provided  that  if  company  should  not  be 
notified  of  subsequent  encumbrances  and  consent  obtained 
that  it  should  be  void.  Ic  was  assigned  to  plaintiff,  who 
gave  a  mortgage  to  the  assured  upon  property  insured. 
Jleld,that  the  insurance  was  thereby  rendered  void.  Par- 
ker V.  Agricultural  Mut.  Ins.  Co.  28  Up.  Can.  C.  P.  80. 
1877. 

§  11.  A  mortgage  that  has  been  paid,  although  not 
discharged  of  record,  is  no  encumbrance.  Merrill  v.  Agri- 
cultural Ins.  Co.  73  N.  Y.  452.    1878.    Affi'g  10  Hun,  428. 

§  12.  Policy  provided  that  "should  there,  during  the 
life  of  this  policy,  an  encumbrance  fall  or  be  executed  upon 
the  property  insured  sufficient  to  reduce  the  real  interest 
of  the  insured  in  the  same  to  a  sum  only  equal  to  or  below 
the  amount  of  the  insurance,  and  he  neglect  and  fail  to  ob- 


I 


BNOUMBBANGB. 


8a 


tain  the  consent  of  the  connpany,"  then  and  in  such  case  it 
shall  be  void.  Held^  that  if  the  assured  suffers  a  judgment 
to  be  entered  against  him,  an  encumbrance  falls  within  the 
meaning  of  the  condition,  or  otherwise,  if  the  encumbrance 
gives  another  a  right  and  lessens  his  own  interest  in  the 
property  to  a  sum  not  exceeding  the  amount  in  the  policy, 
it  is  forfeited.  Kensington  National  Bank  v.  Yerkes,  86 
Pa.  227.     1878. 

§  13.  When  policy  permits  an  encumbrance  to  amount 
to  one  thousand  dollars,  a  mortgage  for  twelve  hundred 
renders  it  void.  Sentell  v.  Oswego  County  Farmers'  Ins. 
Co.  16  Hun,  516.  1879.  s.  p.  Gould  v.  Holland  Pur- 
chase  Ins.  Co.  16  Hun,  538.     1879. 

§  14.  A  void  mortgage  cannot  be  regarded  as  an  en- 
cumbrance. Watertown  Ins.  Co.  v.  Grover  &  Baker  Sew- 
ing Machine  Co.  41  Mich.  131.     1879. 

§  15.  Payment  of  an  encumbrance  cannot  be  presumed. 
Gould  V.  Holland  Purchase  Ins.  Co.  16  Hun,  538.     1879. 

§  16.  Policy  contained  condition  that  "this  company 
shall  not  be  liable,  if,  without  written  consent  hereon,  the 
property  shall  hereafter  become  encumbered  in  any  way." 
HeM,  it  referred  to  encumbrances  created  by  act  of  the  as- 
sured, and  has  no  application  to  encumbrances  by  judg- 
ment, or  otherwise  created  by  operation  of  law.  Baley  v. 
Homestead  Fire  Ins.  Co.  80  N.  Y.  21.  1880.  Affi'g  16 
Hun,  503.  8.  p.  Steen  v.  Niagara  Ins.  Co.  12  N.  Y.  Week. 
Dig.  3.     1881.    N.  Y.  Sup. 

§  17.  Company  seeking  to  avoid  policy  on  the  ground 
of  the  existence  of  a  mortgage  as  an  encumbrance  is  bound 
to  show  that  the  mortgage  is  such  in  reality  as  well  as  in 
appearance.  An  encumbrance  outstanding  which  is  itself 
barred  at  law  and  in  equity  by  the  statute  of  limitations  is 
not  a  real  imperfection  in  the  title.  Lockwood  v.  Middle- 
sex Mut.  Ins.  Co.  47  Conn.  553.     1880. 

§  18.  Policy  provided  that  company  should  not  be 
liable  for  a  loss  if,  without  written  consent  on  the  policy, 
property  should  become  encumbered  in  any  way.     It  was 


Wi 
P 

m 


11 


^am 


90 


KNOUMBRANCB. 


issued  September  4,  1876.  Notice  of  claim  under  me- 
chanics' lien  law  was  filed  September  19,  1876.  Fire  oc- 
curred October  14,  1876.  Held,  it  not  being  claimed  that 
the  notice  was  filed  by  the  procurement  of  the  assured,  that 
the  notice  was  not  such  an  encumbrance  as  was  contem- 
plated by  the  condition.  That  the  condition  applies-  only 
to  encumbrances  created  by  or  with  the  assent  of  the  as- 
sured, and  to  the  creation  of  which  he  might  apply  for  the 
consent  of  the  company,  and  that  its  true  meaning  was 
that  the  assured  should  not  encumber  the  property  with- 
out first  obtaining  the  consent  of  the  company.  Green  v. 
Homestead  Fire  Ins.  Co.  82  N.  Y.  517.  1880.  Affi'g  17 
Hun,  467. 

§  19.  A  subsisting  mechanics'  lien  for  which  a  petition 
is  filed,  is  an  encumbrance.  Rednion  v.  Phoenix  Fire  Ins. 
Co.  51  Wis.  292.     1881.     Wis. 

§  20.  A  chattel  mortgage  made  for  a  special  purpose 
which  has  been  accomplished,  and  the  mortgage  being  no 
longer  a  legal  obligation,  although  it  remains  undischarged 
on  the  record,  is  no  encumbrance.  Baile  v.  St.  Joseph  F. 
and  M.  Ins.  Co.  10  Ins.  L.  J.  657.     1881.     Mo. 

§  21.  Encumbrances  were  represented  as  amounting 
to  about  three  thousand  dollars,  when  in  fact  they 
amounted  to  $4,425.  Held,  such  a  misrepresentation  as 
to  avoid  the  insurance  without  reference  to  the  good  faith 
of  the  assured.  Glade  v.  Germania  Fire  Ins.  Co.  12  Rep. 
238.     1881.     Iowa. 

8ec  Alienntion,  §  61.  Concealment,  3,  10.  Entirety  and  Divisibility  of 
Pdicy,  2,  5,  8.  9.  Estoppel,  37.  Evidence,  ?.4,  57.  Insurable  Interest,  13, 
4'',.  Mutuiil  Company,  111.  Other  Insurance,  43.  Plciidin^  and  Practice, 
20,  27.  Proofs  of  Loss,  38.  Renewal,  7,  14.  Title,  8,  1(1,  18,  84,  37,  51,  56. 
Use  and  Occupation,  20.  Warranty  and  Representation,  20,  81,  86,  89,  94, 
99,  103,  104. 


.1 


ENTIRETY   AND  DIVISIBILITY  OP  POLICY. 


§  1.  A  contract  of  insurance  is  entire,  although  cov- 
ering different  items,  and  if  assured  has  falsely  and  fraud- 
ulently sworn  to  a  false  statement  in  regard  to  one  of  the 
items,  it  avoids  the  entii'e  insurance.  Cashraan  v.  Loud. 
&  Liv.  Fire  Ins.  Co.  5  Allen,  N.  B.  246.     1862. 

§  2.  The  effect  of  insuiing  separate  buildings  for  sep- 
arate sums  is  only  to  limit  the  liability  of  the  company  to 
each.  An  incumbrance  upon  or  affecting  one  of  the  build- 
ings only,  renders  the  whole  policy  void.  Bleakley  v. 
Niagara  District  Ins.  Co.  16  Grant  Ch.  198.     1869. 

§  3.  Where  the  consideration  is  entire,  the  contract  is 
entire,  although  its  subjects  may  consist  of  several  distinct 
and  wholly  independent  items.  When  policy  covers  build- 
ing and  machinery,  if  void  as  to  one  it  is  entirely  void. 
Bowman  v.  Franklin  Fire  Ins.  Co.  40  Md.  620.     1874. 

§  4.  Contract  *  insurance  is  entire,  and  failing  in 
part  it  fails  wholly  notwithstanding  the  insurance  is  item- 
ized or  specified  in  the  policy  as  being  so  much  upon  the 
building  and  so  much  upon  personal  property  contained 
therein.  Hinman  v.  Hartford  Fire  Ins.  Co.  36  Wis.  1 59. 
1874. 

§  5.  When  the  consideration  fur  the  insurance  is 
single  and  entire  the  sole  effect  of  apportionment  upon 
separate  and  distinct  items  of  the  property  named  in  the 
policy  is  to  limit  the  extent  of  the  insurer's  risk  as  to  each 
such  item  to  the  sum  so  specified  ;  if  the  facts  which  con- 
stitute a  forfeiture  are  connected  with  one  of  the  items 
only  it  voids  the  entire  policy.  Policy  contains  condition 
that  if  the  insured  should  mortgage  the  property  without 
notice  it  should  be  void.  IJeldy  that  the  whole  was  ren- 
dered void  by  a  mortgage  of  a  portion  of  the  insured 
property.  Plath  v.  Minnesota  Farmers'  Mutual  Ins.  Co.  23 
Minn.  479.     1877. 


f!    n 


/ 


,111 
w 


/ 


92 


/ 


ENTIRETY  AND  DlVISIBILITr  OF  POLICY. 


§  6.  Fraud  and  false  swearing  as  to  one  item  of  the 
insurance  covered  by  the  policy  avoids  the  whole  contract. 
Moore  v.  Virginia  Fire  Ins.  Co.  28  Grat.  508,  524.     1877. 

§  7.  When  policy  provides  that  if  the  property  be 
sold  without  consent  indorsed  upon  it,  it  should  be  void, 
the  sale  of  a  part  or  a  portion  only  does  not  effect  a  for- 
feiture of  the  whole.  Quarrier  v.  Peabody  Ins.  Co.  10  W. 
Va.  507.     1877. 

§  8.  Policy  insured  $1,000  on  building  and  $2,000 
on  stock.  It  contained  a  clause  avoiding  it  in  case  any  in- 
cumbrances should  be  concealed.  There  were  in  fact  sev- 
eral mortgages  upon  the  real  estate.  Held^  that  the  con- 
tract was  entire  and  indivisible,  and  that  the  existence  of 
the  incumbrances  on  the  building  rendered  the  whole 
policy  void.  Gore  District  Mut.  Fire  Ins.  Co.  v.  Samo,  2 
Can.  Sup.  411.     1878. 

§  9.  Policy  covered  $6,000,  being  divided  into  spe- 
cific insurance  on  buildings,  and  various  articles  of  per- 
sonal property,  in  all,  fourteen  items.  It  provided  that  if 
property  should  be  incumbered  by  mortgage,  or  other- 
wise, it  should  be  void.  A  mortgage  was  given  covering 
the  buildings.  Held^  that  the  contract  was  not  entire,  but 
was  divisible ;  that  the  breach  of  the  condition  applied 
only  to  class  of  property  insured,  which  was  the  immediate 
subject  of  the  act  of  incumbrance  which  constituted  that 
breach.  That  plaintiff  could  recover  upon  the  other  items, 
Merrill  v.  Agricultural  Ins.  Co.  73  N.  Y.  452.  1878. 
Affi'g  10  Hun,  428.  s.  p.  Holmes  v.  Drew,  16  Hun,  491. 
1879.  Sunderlin  v.  ^tna  Ins.  Co.  18  Hun,  522.  1879. 
Dacey  v.  Agricultural  Ins.  Co.  21  Ilun,  83.     1880. 

§  10.  Alienation  by  assured  of  one  of  several  items 
or  parcels  of  property  separately  insured  in  same  policy, 
renders  the  whole  policy  void.  Baldwin  v.  Hartford  Ins. 
Co.  10  Ins.  L.  J.  438.     1881.     N.  II. 


See  Adjustment,  §  3.     niegality  of  Contract,  3. 
tntion,  83. 


Warranty  and  Reprcaeu- 


be 
for- 

w. 


ESTOPPEL. 

§  1.  Notice  to  an  agent  is  inoperative  to  effect  an 
estoppel  or  waiver  unless  such  agent  has  power  and 
authority  to  indorse  company's  consent  to  the  fact  con- 
veyed by  such  notice.  Notice  of  other  insurance  to  b.;> 
thus  effectual  must  be  given  to  an  agent  who  is  authorized 
to  indorse  consent  upon  the  policy.  Hendrickson  v. 
Queen  Ins.  Co.  30  Up.  Can.  Q.  B.  108.     1870. 

§  2.  Oral  consent  of  local  agent  to  transfer  of  prop- 
erty pending  obtaining  of  indorsement  on  the  policy 
operates  as  an  estoppel.  Illinois  Fire  Ins.  Co.  v.  Stanton, 
57  111.  354.     1870. 

§  3.  Statement  in  proofs  of  existence  of  other  insur- 
ance cannot  operate  as  an  estoppel  against  evidence  tend- 
ing to  show  that  such  other  insurance  was  in  fact  invalid. 
Hubbard  v.  Hartford  Fire  Ins.  Co.  33  Iowa,  325.     1871. 

§  4.  Assured  is  not  estopped  by  a  statement  made  by 
him  in  his  examination  under  oath,  from  establishing  the 
truth  to  the  contrary  upon  a  trial.  Germania  Fire  Ins. 
Co.  V.  Curran,  8  Kans.  D.     1871. 

§  5.  Defendant  issued  policy  for  one  year  covering 
goods  on  first  floor  of  building  specified.  Year  being 
about  to  expire,  and  the  goods  in  meantime  having  been 
removed  to  an  upper  story  of  same  building,  plaintiff  gave 
notice  to  defendant  of  such  change  of  location,  and  paid 
for  a  renewal  receipt  delivered  to  him.  No  indorsement 
of  the  change.  Hekl,  that  company  intended  to  give  valid 
insurance  in  the  new  location,  and  that  they  intended  in- 
sured to  believe  that  he  had  received  such.  To  suppose 
otherwise  would  impute  a  fraudulent  disposition.  Ludwig 
V.  Jersey  City  Ins.  Co.  48  N.  Y.  379.     1872. 

§  6.  Compromise  and  payment  is  a  waiver  of  objec- 
tion that  premium  has  not  been  paid  and  is  a  recognition 
of  the  policy  as  a  valid  contract ;  by  acceptance  assured 


^■1 


.  1' 


04 


ESTOPPEL. 


18  estopped  from  maintaining  an  action  for  the  difference 
"between  such  amount  and  the  amount  which  would  other- 
wise be  due  as  adjusted  and  apportioned.  Haight  v.  Kre- 
mer,  9  Phil.  Rep.  50.     1872. 

§  7.  Knowledge  of  company's  agent  does  not  operate 
as  an  estoppel  when  the  defense  is  fraud  and  collusion 
between  him  and  the  assured.  Rockford  Ins.  Co.  v.  Nel- 
son, 65  111.  415.     1872. 

§  8.  Company  is  estopped  from  insisting  on  a  defense 
in  regard  to  other  insurance  when  it  is  shown  that  the  as- 
sured was  induced  to  apply  for  the  policy  by  the  fraudu- 
lent misstatements  and  omissions  of  the  agent,  and  that 
he  was  kept  in  ignorance  of  the  existence  of  the  stipula- 
tion in  the  policy  by  fraudulent  conduct  and  statements 
of  the  agent  which  induced  him  not  to  open  and  read  it. 
McKenzie  v.  Fire  Ins.  Co.  9  Heiskell,  261.     1872. 

§  9.  The  knowledge  of  insurance  brokers  is  not  the 
knowledge  of  the  company  so  as  to  effect  an  estoppel. 
McFarland  v.  Peabody  Ins.  Co.  6  W.  Va.  425.     1873. 

§  10.  When  party  claims  an  estoppel  upon  a  written 
statement  furnished,  it  cannot  be  sustainetl  when  he  is 
obliged  to  inquire  for  and  establish  the  existence  of  other 
facts.  Such  facts  jiay  be  contradicted.  McMaster  v.  Ins. 
Co.  of  N.  A.  55  N.  Y.  222.     1873. 

§  11.  The  fact  that  company  knew  of  the  use  of 
spirit  gas  by  a  former  tenant  does  not  justify  a  finding 
that  the  assured  had  permission  for  its  continued  or  future 
use.  Minzesheimer  v.  Continental  Ins.  Co.  5  Jones  &  Sp. 
332.     1874. 

§12.^  Although  the  assured  may  have  represented 
the  premises  to  be  frame  and  shingle  houses,  yet  as  the 
agent  of  the  company  was  present  and  inspected  the 
buildings  at  the  time  of  the  insurance  and  before  the  issue 
of  the  policy  and  inserted  the  description  in  the  policy 
based  upon  his  own  inspection  as  well  as  the  insured's 
representation,  and  such  a  description  was  a  mistaken 
one,  the  company  is  estopped  from  insisting  upon  a  breach 


ESTOPPEL. 


95 


1 


of  warranty  in  respect  to  sucb  description.     Continental 
Ins.  Co.  V.  Kasey,  25  Grat.  268.     1874. 

§  13.  The  provision  that  an  indorsement  shall  be 
made  upon  the  policy  is  nothing  but  a  direction  that  an 
act  shall  be  done,  and  falls  into  the  class  of  ordinary  con- 
ditions precedent.  And  such  provision  may  be  waived 
or  the  company  estopped  by  its  conduct  from  insisting 
upon  a  forfeiture,  by  reason  of  facta  occurring  after  issue 
and  delivery  of  policy  and  during  its  continuance.  Pech- 
ner  v.  Phcenix  Ins.  Cc.  35  N.  Y.  195.  1875.  But  see 
Walsh  V.  Hartford  Fire  Ins.  Co.  73  N.  Y.  5.     1878. 


§  14.  When  policy  is  issued  by  an  agent  having 
knowledge  of  the  actual  condition  of  the  chimney,  stoves 
and  pipes  of  the  building  insured,  company  is  estopped 
from  insisting  upon  any  breach  of  warranty  in  relation 
thereto.  If  such  a  warranty  should  be  promissory  in  its 
nature  assured  is  bound  only  to  keep  them  as  secure 
as  they  were  when  the  application  was  made,  it  not 
appearing  that  the  company  or  its  agent  gave  notice 
or  intimated  to  the  assured  in  any  respect  that  the  stove 
pipes  and  chimney  were  in  anywise  insecure  or  required 
them  to  be  made  more  secure.  Simmons  v.  Ins.  Co.  8  W. 
Va.  474.     1875. 

§  15.  When  the  insured  is  disposed  and  makes  an 
effort  to  have  a  mistake  corrected  in  the  policy,  but  is  pre- 
vented or  thrown  off  his  guard  and  dissuaded  therefrom 
by  the  act  or  declaration  of  the  company,  the  latter  is  es- 
topped from  sotting  up  in  bar  of  an  action  upon  the  pol- 
icy, the  letter  of  the  contract,  and  that  the  situation  of  the 
property  does  not  agree  therewith,  and  from  claiming  the 
strictly  legal  consequences.  Maher  v.  Hibernia  Ins.  Co. 
67  N.  Y.  283.     1 870.     Affi'g  0  Ilun,  353. 

§  10.  Policy  j)rovided  that  if  premises  should  be  un- 
occupied for  over  thirty  days  without  written  consent  in- 
dorsed, it  should  be  void.  About  one  week  after  property 
was  left  vacant  assured  asked  company's  secretary  to  put 
his  consent  on  the  policy,  and  he  said  in  reply,  "  we  waive 
all  that."    Fire  occurred  while  premises  were  unoccupied, 


"■^h 

yM 


mM 


m 


Kr^ 


96 


ESTOPPEL. 


I-, 


.-I'  -..(if.'. 


and  about  four  weeks  later.  Held,  that,  as  at  time  of  in- 
terview with  secretary  forfeiture  had  not  taken  place,  it 
could  have  been  prevented  by  the  assured  had  he  not 
been  misled  by  the  verbal  consent,  there  was  a  waiver. 
Company  cannot  insist  upon  a  forfeiture  for  an  act  which 
they  themselves  induce  the  assured  to  do.  Adams  v. 
Greenwich  Ins.  Co.  9  Hun,  45.  1876.  Affi'd  70  N.  Y. 
166,  171.  8.  p.  Van  Allen  v.  Farmers'  Joint  Stock  Ins. 
Co.  10  Hun,  397.     1877.    Affi'd  72  N.  Y.  604. 

§  17.  Policy  provided  that  if  the  premises  should  be- 
come vacated  by  removal,  and  so  remain  for  a  period  of 
more  than  fifteen  days  without  notice  and  consent  indorsed 
upon  the  policy,  it  should  become  void.  The  premises 
were  burned  during  such  vacancy.  Evidence  was  received 
that  before  the  issumg  of  the  policy  the  insured  had  stated 
to  the  agent  that  he  expected,  during  the  continuance  of 
the  policy,  to  leave  the  house  vacant  during  a  year  or 
more,  and  was  informed  it  would  make  no  difference,  such 
evidence  being  relied  upon  as  an  estoppel.  Held,  that  the 
cases  which  hold  that  an  estoppel  is  created  by  knowledge 
of  the  company  relate  to  a  knowledge  of  existing  facts  at 
the  time  of  its  uction,  when  such  action  would  not  be  con- 
sistent with  any  idea  that  they  were  to  be  discharged 
from  liability  by  reason  thereof,  but  that  in  this  case  the 
vacancy  concerning  which  the  parties  conversed  was  one 
contemplated  in  the  future,  and  the  stipulation  or  under- 
standing, if  it  amounted  to  anything,  was  an  executory 
contract  intended  to  form  a  part  of  the  contract  of  insur- 
ance. This  being  so,  the  doctrine  cannot  be  admitted  that 
any  part  of  the  completed  contract  can  rest  in  parol.  The 
policy  was  the  conclusion  of  the  bargain,  and  its  accept- 
ance would  exclude  any  parol  promises  inconsistent  with 
it,  and  that,  therefore,  the  company  was  not  estopped 
from  insisting  upon  the  defense.  Hartford  Fire  Ins.  Co. 
v.  Davenport,  37  Mich.  609.     1877. 

§  18.  If  agent's  duty  to  insert  in  policy  nature  of  as- 
sured's  interest  as  disclosed  to  him,  his  failure  to  do  it  es- 
tops the  company  from  objecting  to  validity  of  policy  by 
reason  of  such  omission.  Gates  v.  Penn  B^ire  Ins.  Co.  10 
Hun,  489.     1877. 


ESTOPPEL. 


97 


§  19.  When  assured  is  induced  by  the  act  or  declara- 
tion of  company's  local  agent,  accustomed  to  receive  and 
forward  notices  of  loss,  to  delay  the  furnishing  of  proofs, 
company  is  estopped  from  insisting  upon  such  delay  as 
ffround  of  forfeiture.  Van  Allen  v.  Farmers'  Joint  Stock 
Ins.  Co.  10  Hun,  397.  1877.  Affi'd  72  N.  Y.  604  (on 
opinion  of  lower  court).  And  same  when  the  delay  is  in- 
duced by  an  adjuster.     Id. 

§  20.  When  secretary  states  to  the  assured  "that  it  is 
not  necessary  to  have  his  indorsement  of  the  approval  of 
the  company  of  an  assignment  on  the  back  of  the  policy, 
company  is  estopped  from  setting  up  a  defense  founded 
upon  such  assignment.  Stolle  v.  -^tna  Ins.  Co.  10  W.  Va. 
546.     1877. 

§  21.  Policy  required  that  if  building  insured  stood 
on  leased  land,  it  must  be  so  represented  to  company  and 
expressed  in  written  part.  Company's  agent  knew  when 
he  accepted  the  risk  that  building  stood  on  leased  ground, 
but  the  fact  was  not  inserted  in  the  policy.  Held,  that 
company  was  estopped  from  setting  up  defense  under  con- 
dition. Van  Schoick  v.  Niagara  Fire  Ins.  Co.  68  N.  Y.  434. 
1877.  It  seems  policy  in  this  case  did  not  contain  usual 
agency  clause.     P.  441. 

§  22.  Company  is  estopped  by  mistakes  of  agent  in 
filling  up  an  application,  the  facts  at  the  time  being  cor- 
rectly stated  to  him  by  the  assured.  .  Planters'  Ins.  Co.  v. 
Sorrels,  1  Baxt.  352.  1872.  McBride  v.  Republic  Fire 
Ins.  Co.  30  Wis.  562.  1 872.  Cheek  v.  Columbia  Ins.  Co. 
4  Ins.  L.  J.  99.  1874.  Tenn.  Parker  v.  Amazon  Ins.  Co. 
34  Wis.  364.  1874.  Chatillon  v.  Canadian  Mut.  Fire  Ins. 
Co.  27  Up.  Can.  C.  P.  450.  1877.  Ins.  Co.  v.  Lewis,  48 
Tex.  622.    1878.    Texas  Ins.  Co.  v.  Stone,  49  Tex.  4.    1878. 

§  23.  Policy  described  the  property  as  being  occupied 
"  as  a  dwelling  and  boarding  house."  The  insurance  was 
obtained  through  one  Buckley,  an  agent  of  the  company. 
The  judge  at  the  trial  received  evidence  that  he  inspected 
the  premises  at  the  time  of  taking  the  application,  and 
knew  the  manner  in  which  they  were  thus  used,  and  left 

Vol.  II.— 7 


til 


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1 


ESTOPPEL. 


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the  question  to  the  jury  whether  the  parties  themselvea 
did  not  knowingly  use  the  terra  "  boarding  house,"  to  de- 
scribe the  very  thing  that  was  insured,  and  if  they  did  in 
that  view,  the  knowledge  of  the  agent  was  material ;  that 
if  agent,  acting  on  his  own  knowledge,  making  his  own 
survey,  undertook  to  describe  the  building,  it  is  his  de- 
scription of  the  risk,  and  if  the  company  accepts  it,  it 
agrees  that  the  term  used  shall  describe  the  risk  as  it  ex- 
isted. Held,  error,  as  the  effect  given  to  the  testimony 
was  to  change  the  teiras  of  the  contract  and  reform  it, 
and  make  another  and  a  different  contract ;  such  facts  can- 
not operate  as  an  estoppel.  Franklin  Fire  Ins.  Co.  v. 
Martin,  11  Vroom,  N.  J.  L.  R.  568.     1878. 

§  24.  Policy  provided  that  if  any  misrepresentation  or 
concealment  of  facts  has  been  made  in  the  r.pplication 
*  *  *  or  if  assured  shall,  in  any  mannei",  make  an 
attempt  to  defraud  this  company,  policy  shall  be  void.  It 
appeared  that  in  the  application  assured  had  omitted  to 
mention  a  small  building,  a  water  closet,  within  about 
forty-six  feet  of  the  premises.  It  appeared,  before  the 
issue  of  the  policy,  agent  of  the  company  inspected  and 
surveyed  the  premises.  Held,  that  the  condition  contem- 
plated fraudulent  concealment  only,  and  that  the  company 
-was  estopped  by  the  inspection  of  the  acent.  Naughter 
V.  Ottawa  Ins.  Co.  43  Up.  Can.  Q.  B.  12h     1878. 

§  25.  Assured  stated  in  his  application  for  insurance 
upon  a  mill,  that  there  was  no  other  insurance,  when,  in 
fact,  there  was  another  policy  on  the  machinery  therein. 
Held,  that  the  insurance  was  therel)y  rendered  void,  and 
that  company  was  not  estopped  by  knowledge  of  its 
agent;  that  assured's  remedy  was  in  equity  by  reforma- 
tion of  the  policy.  Shannon  v.  Gore  District  Mut.  Fire 
Ins.  Co.  2  Tapper,  396.  1878.  Kev'g  40  Up.  Can.  Q.  B. 
188. 

§  26.  When  an  agent  authorized  to  take  applications 
for  a  company  intentionally  or  negligently  writes  a  wrong 
answer,  or  misleads  the  assured  in  the  taking  and  filling 
up  of  an  application  for  insurance,  it  is  error  to  exclude 
parol  evidence  of  what  actually  did  occur,  and  what  was 


Co. 


ESTOPPEL. 


S9 


ling 


said  by  the  assured,  at  the  time  of  the  taking  of  his  ap- 
plication. If  such  agent  received  correct  information, 
company  will  not  be  permitted  to  escape  from  liability  on 
account  of  his  error  or  neglect.  Smith  v.  Farmers'  & 
Mechanics'  Mut.  Ins.  Co.  89  Pa.  287.     1879. 

§  27.  Assured  being  bound  to  represent  the  true 
state  of  title,  before  company  can  be  bound  by  knowledge 
of  its  agent,  it  must  appear  that  he  knew  the  entire  truth. 
It  is  not  enough  that  he  was  put  upon  inquiry.  Bell  v. 
Lycoming  Fire  Ins.  Co.  19  Hun,  238.     1879. 

§  28.  Policy  appointing  payee  to  receive  the  loss,  if 
any,  "  as  interest  may  appear,"  does  not  show  knowledge 
in  agent  or  company  of  true  conditioh  of  title.  Such  a 
statement  cannot,  of  itself,  operate  as  a  waiver  of  condi- 
tions, or  estop  the  company  from  insisting  upon  a  breach 
as  a  bar  to  recovery.  Lasher  v.  Northwestern  Nat.  Ins. 
Co.  18  Hun,  104.     1879. 

§  29.  The  giving  of  a  certificate  by  a  local  agent,  cer- 
tifying that  a  policy  had  been  applied  for  and  was  ob- 
tained, to  a  sheriff,  in  consequence  of  which  a  writ  of  exe- 
cution is  stayed  and  policy  remains  in  possession  of  the 
agent,  and  is  never  delivei'ed  to  the  assured  or  to  the  par- 
ties to  whom  the  loss  was  made  payable,  does  not  operate 
as  an  estoppel.  Greene  v.  Lycoming  Fire  Ins.  Co.  91  Pa. 
387.    1879. 

§  30.  Semhle  that  to  estop  company  from  insisting 
upon  forfeiture  on  the  ground  of  agent's  knowledge  at  the 
time  of  the  issue  of  the  policy,  it  must  appear  not  only 
that  the  agent  knew  generally  the  fact  of  the  existence  of 
other  insurance,  but  that  he  knew  its  amount.  Billingtou. 
v.  Provincial  Ins.  Co.  3  Can.  Sup.  182.     1879. 

§  31.  Notice  to  a  soliciting  agent  of  the  existence  of 
other  insurance  is  notice  to  the  company,  which  is  estopped 
from  defending  upon  that  ground.  Brandaf  v.  St.  Paul 
Fire  Ins.  Co.  11  Kep.  434.     1880.    Minn. 

§  32.  When  a  company  joins  with  others  in  an  adjust- 
ment and  promises  to  pay  its  allotted  portion,  and  assured 


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ESTOPPEL. 


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settles  with  the  other  companies  on  basis  of  such  adjust- 
ment, the  former  company  is  estopped  to  deny  its  liabil- 
ity.   Fishbeck  v.  Phoenix  Ins.  Co.  54  Cal.  422.     1880. 

§  33.  Promise  of  an  agent  to  procure  necessary  in- 
dorsement of  consent  to  an  assignment  of  a  policy  does 
not  estop  the  company  from  insistinjj  upon  a  forfeiture. 
Shuggart  v.  Lycoming  Fire  Ins.  Co.  55  Cal.  408.     1880. 

§  34.  If  a  company  insures  goods,  usin^  general 
terras  in  their  description,  and  the  agent  who  issues  the 
policy  tells  the  assured  that  the  description  includes  ben- 
zine, it  is  estopped  in  case  of  loss  from  claiming  that  ben- 
zine is  prohibited  and  that  its  being  on  the  premises 
avoids  the  insurance.  Carrigan  v.  Lycoming  Ins.  Co.  10 
Ins.  L.  J.  606.    1881.    Vt. 

§  35.  It  is  not  essential  that  knowledge  of  an  agent 
be  acquired  in  connection  with  issue  of  particular  policy 
in  suit,  it  being,  in  eflFect,  a  renewal  of  one  previously 
existing,  in  course  of  issuing  and  transferring  which  agent 
acquired  his  information.  Broad  head  v.  Lycoming  Fire 
Ins.  Co.  23  Hun,  397.    1881. 

§  36.  A  soliciting  agent  has  no  authority  by  virtue 
of  such  employment  to  consent  to  other  insurance,  and 
notice  to  him  of  such  other  insurance  is  not  notice  to  the 
company.  Heath  v.  Springfield  Fire  Ins.  Co.  12  Rep.  213. 
188L    *N.  H. 

§  37.  Issue  of  policy  by  agent  with  knowledge  of 
facts  constituting  a  forfeiture  estops  company  from  setting 
up  same  as  a  defense.  Commercial  Ins.  Co.  v.  Ives,  56  111. 
402.  1870.  Home  Mut.  Ins.  Co.  v.  Garfield,  60  111.  124. 
1871.  Gershauser  v.  N.  B.  and  M.  Ins.  Co.  7  Neb.  174. 
1871.  Planters'  Mutual  Ins.  Co.  v.  Deford,  38  Md.  382. 
1873.  Field  v.  Ins.  Co.  of  N.  A.  6  Bisa.  121.  1874.  Rus- 
sell  v.  State  Ins.  Co.  55  Mo.  585.  1874.  Michigan  State 
Ins.  Co.  V.  Lewis,  30  Mich.  41.  1874.  Hadley  v.  Ins.  Co. 
55  N.  H.  110.  1875.  Andes  Ins.  Co.  v.  Shipman,  77  111. 
189.  1875.  Lycoming  Ins.  Co.  v.  Jackson,  83  111.  302. 
1876.  Liv.  Lond.  and  G.  Ins.  Co.  v.  McGuire,  52  Miss. 
227.     1876.     Carr  v.  Hibernian  Ins.  Co.  2  Mo.  App.  446. 


ESTOPPEL. 


101 


m 


1876.  Aurora  Fire  Ins.  Co.  v.  Kranich,  36  Mich.  289. 
1876.  Mers  v.  Franklin  Ins.  Co.  68  Mo.  127.  1878. 
Weeks  V.  Lycoming  Ins.  Co.  7  Ins.  L.  J.  552.  1878.  U. 
S.  Circuit,  Vt.  In  regard  to  storing  or  keeping  of  gun- 
powder. Reaper  City  Ins.  Co.  v.  Jones,  62  111.  458.  1872. 
In  regard  to  watch,  clock.  Andes  Ins.  Co.  v.  Shipman, 
5  Ins.  L  J.  137.  1875.  111.  In  regard  to  value.  Red- 
ford  V.  Mutual  Fire  Ins.  Co.  38  Up.  Can.  Q.  B.  538.  1876. 
Dacey  v.  Agricultural  Ins.  Co.  21  Hun,  88.  1880.  In  re- 
gard to  incumbrances.  Dean  v.  Western  Ins.  Co.  41  Up. 
Can.  Q.  B.  553.  1877.  Nau^hter  v.  Ottawa  Ins.  Co.  43 
Up.  Can.  Q.  B.  121.  1878.  Harriman  v.  Queen  Ins.  Co. 
49  Wis.  71.  1880.  And  result  is  not  affected  by  the  fact 
that  the  application  states  that  the  agent  is  to  be  deemed 
in  filling  it  up  as  the  agent  of  the  applicant  and  not  of 
the  company.  Naughter  v.  Ottawa  Ins.  Co.  supra.  In 
regard  to  building  being  vacant  or  unoccupied.  Georgia 
Home  Ins.  Co.  v.  Kinnier,  28  Grat.  88.  1876.  Williams 
V.  Niagara  Ins.  Co.  50  Iowa,  561.  1879.  Imperial  Fire 
Ins.  Co.  V.  Sherman,  96  111.  580.  1880.  Poor  v.  Hudson 
Ins.  Co.  9  Ins.  L.  J.  428.  1880.  U.  S.  Circuit,  N.  H. 
Woodruff  V.  Imperial  Fire  Ins.  Co,  83  N.  Y.  133.  1880. 
In  regard  to  other  insurance.  Ilayward  v.  National 
Ins.  Co.  2  Ins.  L.  J.  503.  1873.  Mo.  Farmers'  Ins.  Co. 
v  Taylor,  73  Pa.  342.  1873.  Lycoming  Ins.  Co.  v. 
Bannmger,  73  111.  230.  1874.  Sherman  v.  Madison  Ins. 
Co.  39  Wis.  104.  1875.  Pitney  v.  Glen's  Falls  Ins.  Co. 
65  N.  Y.  6.  1873.  Pechner  v.  Phcenix  Ins.  Co.  Id.  195. 
Shannon  v.  Gore  District  Ins.  Co.  40  Up.  Can.  Q.  B.  188. 

1876.  Roberts  v.    Continental  Ins.    Co.  41  Wis.  321. 

1877.  American  Ins.  Co.  v.  Luttrell,  89  111.  314.  1878. 
Richardson  v.  Westchester  Fire  Ins.  Co.    15    Hun,  472. 

1878.  Richmond  v.  Niagara  Ins.  Co.  79  N.  Y.  230.  1879. 
American  Ins.  Co.  v.  Gallatin,  48  Wis.  37.  1879.  Fish- 
beck  v.  Phoenix  Ins.  Co.  54  Cal.  422.  1880.  In  regard  to 
interest  or  title.  American  Central  Ins.  Co.  v.  McLana- 
than,  11  Kans.  533.  1873.  Rockford  Ins.  Co.  v.  Nelson, 
75  111.  548.  1874.  Andes  Ins.  Co.  v.  Fish,  71  111.  620. 
1874.    Manhattan   Fire  Ins.  Co.  v.  Neill,  28  Grat.  389. 

1877.  Broadhead  v.  Lycoming  Ins.  Co.   14   Hun,  452. 

1878.  Chase  v.  People's  Ins.  Co.  Id.  456.  Phoenix  Ins. 
Co.  V.  Tucker,  92  111.  64.     1879.     Union  Ins.  Co.  v.  Chipp, 


!iH'.; 


m\ 


102 


EVIDENCE. 


93  111.  96.  1879,  Germania  Ins.  Co.  v.  McKee,  94  III 
494.  1880.  Farmers'  Ins.  Co.  v.  Meekes,  10  Ins.  L.  J. 
707.  1880.  Pa.  Ben.  Franklin  Ins.  Co.  v.  Gillett,  9  Ins. 
L.  J.  774.  1880.  Md.  Smith  v.  Commonwealth  Ins.  Co. 
49  Wis.  322.  1880.  Miaghan  v.  Hartford  Fire  Ins.  Co. 
24  Hun,  68.     1881. 

See  Adjustment,  §  6,  Agent,  11,  12,  25,  77,  79,  88,  89, 102.  Application, 
11.  Assignment,  9.  Cancellation,  9.  Evidence,  57.  Insurable  Interest,  9. 
Limitation,  23.  Mutual  Company,  94,  107,  129.  Notice  of  Loss,  15.  Other 
Insurance,  12, 13,  24.  34.  Parol  Contract,  7, 13.  Premium,  2,  5,  18.  Proofs 
of  Loss,  14,  25,  57,  58,  59.  Renewal,  7.  Storing  and  Keeping,  22,  Title,  2, 
31.  Use  and  Occupation,  4,  9,  12.  Vacant  or  Unoccupied,  23.  Waiver,  15, 
23,  25. 


m 


EVIDENCE. 

§  1.  It  is  not  proper  to  ask  the  agent  of  company  as 
to  whether  he  would  have  issued  the  policy  if  certain 
facts  had  been  made  known  to  him.  Perkins  v.  Equita- 
ble Ins.  Co.  4  Allen,  N.  B.  562.     1860. 

§  2.  Proof  that  company  had  insured  property  for 
years,  and  knew  purpose  for  which  it  was  erected,  the 
manner  in  which  it  was  occupied,  general  character  of  its 
contents,  and  nature  and  extent  of  the  risk,  is  admissible 
as  tending  to  aid  the  court  in  applying  descriptive  lan- 
guage of  policy  to  actual  subject  of  insurance,  and  in  giv- 
ing effect  to  the  words  of  the  contract  in  the  precise  sense 
in  which  they  were  understood  and  employed  by  the  par- 
ties. Mayor  of  N.  Y.  v.  Exchange  Fire  Ins.  Co.  34  N.  Y. 
103. 

§  3.  An  adjustment  of  the  amount  of  the  loss,  while 
not  conclusive,  may  be  adopted  by  the  jury  as  evidence  of 
value.  Thompson  v.  Liv.  Lond.  &,  Globe  Ins.  Co.  2  Han- 
nay,  N.  B.  259.     1870. 

§  4.  In  an  issue  upon  cash  value  of  a  building  de- 
stroyed, a  witness  may  state  what  it  cost  to  put  up  such 


EVIDENCE. 


103 


a  building  forty   years   ago,  without   being  an  expert. 
Tuckerman  v.  Home  Ins.  Co.  9  R.  I.  414.     1870. 

§  5.  A  verdict  as  to  value  or  extent  of  loss  cannot  be 
sustained  upon  vague  assertion  or  guess  work.  Grubb  v. 
Ins.  Co.  8  Phil.  Rep.  29.     1870. 

§  6.  Court  cannot  take  judi<;ial  notice  of  inflammable 
qualities  of  kerosene  and  other  liquids.  These  are  facts 
which  must  be  proved  and  established.  Wood  v.  North- 
western Ins.  Co.  4G  N.  Y.  421.     1871. 

§  7.  In  a  suit  upon  the  policy  parol  evidence  is  inad- 
missible to  show  intent  of  parties  to  be  diflferent  from 
what  the  words  express,  and  when  language  employed 
has  a  settled  legal  construction,  such  evidence  cannot  be 
admitted  to  contradict  such  construction.  All  under- 
standings are  merged  in  the  written  instrument,  and 
neither  party  can  be  permitted  to  prove  that  the  instru- 
ment does  not  mean  what  it  says.  Pindar  v.  Resolute 
Fire  Ins.  Co.  47  N.  Y.  114.  1871.  b.  p.  Mills  v.  Farmers' 
Ins.  Co.  37  Iowa,  400.  1873.  McCluskey  v.  Providence 
Ins.  Co.  126  Mass.  306.     1879. 

§  8.  Where  plaintiff  applied  for  insurance  by  mailing 
to  defendant  another  policy,  with  request  that  its  "  word- 
ing should  be  followed  exactly,"  and  such  policy  in  terms 
insured  stock  "  such  as  is  usually  kept  in  country  stores." 
Held,  in  a  suit  upon  the  policy,  the  evidence  inadmissible 
for  purpose  of  showing  notice  to  defendant.  That  such 
notice  was  not  material,  so  long  as  defendant  did  not  ac- 
cept risk  as  offered,  or  insert  in  its  policy  permission  to 
keep  prohibited  goods.  If  assured  was  not  content  with 
policy  sent,  he  should  have  rejected  it,  and  his  failure  to 
read  it  could  not  enlarge  the  liability  imposed  upon  de- 
fendant. Pindar  v.  Resolute  Fire  Ins.  Co.  47  N.  Y.  114. 
1871. 

§  9.  The  opinion  of  a  witness  as  to  the  value  of  a 
stock  of  goods  is  not  admissible  unless  he  is  an  expert ; 
the  question  as  to  whether  such  witness  is  qualified  as  an 
expert  must  be  determined  by  the  court.  Taylor  v.  Ins. 
Co.  51  N.  H.  50.     1871. 


11 


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■  ts 


104 


EVIDENCE. 


§  10.  Upon  an  issue  as  to  fraudulent  statement  of 
value  and  extent  of  loss  upon  a  stock  of  goods,  the  ques- 
tion to  a  witness  who  resides  at  another  place,  whether  the 
amount  of  stock  carried  by  his  firm  for  their  average 
year's  sales  was  or  was  not  the  prudent  proportion  of 
stock  to  sales  in  that  business,  is  properly  excluded. 
Semhle  such  evid^isuce  may  be  competent  where  the  wit- 
ness is  in  the  same  kind  of  business  in  the  same  place. 
Jones  v.  Mechanics'  lire  Ins.  Co.  7  Vroom,  N.  J.  L.  R  29. 
1872. 

§  11.  The  wife  of  the  assured,  although  authorized  to 
make  the  necessary  proofs  of  loss  cannot  be  examined  as  a 
witness  in  regard  to  the  title  of  her  husband  and  the  as- 
sured. O'Connor  v.  Hartford  Fire  Ins.  Co.  31  Wis.  160. 
1872. 

§  12.  Evidence  that  the  company  had  in  other  in- 
stances as  to  other  parties  waived  a  compliance  with  the 
condition  requiring  notice  in  the  case  of  transfer  or  aliena- 
tion is  inadmissible,  although  it  seems  that  such  evidence 
may  be  admissible  if  shown  to  be  the  custom  of  all  fire  in- 
surance companies.  Burger  v.  Firemen's  Mutual  Ins.  Co. 
71  Pa.  422.     1872. 

§  13.  Evidence  of  offers  of  compromise  may  be  ad- 
missible as  bea''ng  upon  question  of  sufficiency  of  proof 
of  "«>r,s,  unless  the^  appear  to  have  been  confidential  over- 
tures of  pacification,  or  expressly  stated  to  be  without 
prejudice.  Townsend  v.  Merchants'  Ins.  Co.  4  Jones  & 
Sp.  172.     1873. 

§  14.  An  insurance  company  acts  and  speaks  by  its 
officers  and  what  they  say  and  do  when  in  the  discharge 
of  their  duty  in  relation  to  the  particular  duty  assigned  to 
them  is  evidence  against  the  company.  Muhleman  v.  Na- 
tional Ins.  Co.  G  W.  Va.  508.     1873. 

§  15.  The  rule  that  parol  testimony  may  not  be  given 
to  contradict  a  written  contract,  is  ap])lied  only  in  suits 
between  parties  to  the  instrument  or  their  privies.  Tlie 
assured  may  give  testimony  by  parol  of  another  policy 
than  one  in  suit,  and  tlie  application  of  the  description 


29. 


i 


EVIDENCE. 


105 


therein.    McMaster  v.  Ins.  Co.  of  N.  A.  55  N.  Y.  222. 

1873. 

§  16.  The  question  as  to  whether  lire- works  are  in 
line  of  a  certain  business  is  not  one  to  be  answered  by 
opinion  of  experts,  but  by  an  investigation  of  facts.  Such 
an  opinion  is  properly  excluded.  Steinbach  v.  La  Fayette 
Ins.  Co.  54  N.  Y.  00.     1873. 

§  17.  Where  application  was  made  for  a  policy  like 
one  of  another  company,  and,  as  issued,  contained  a 
printed  clause  which  the  other  did  not,  and  a  blank  form 
of  latter  was  admitted  in  evidence  under  objection,  Held, 
no  error ;  that  as  policies  were  to  be  alike,  it  was  proper 
to  show  that  latter  policy  did  not  contain  the  printed  con- 
dition ;  and  this^  was  properly  shown  by  the  printed  form. 
Van  Tuyl  v.  Westchester  Fire  Ins.  Co.  55  N.  Y.  657. 
1873.    Affi'g  67  Barb.  72. 

§  18.  A  daughter  of  the  assured,  who  bought  a  good 
many  of  the  articles  insured  and  was  present  when  others 
were  bought,  can  testify  upon  the  question  of  value.  Con- 
tinental Ins.  Co.  V.  Horton,  28  Mich.  173.     1873. 

§  19.  The  acts  and  declarations  of  an  adjuster  in  the 
general  scope  of  his  employment  are  properly  received 
in  evidence  and  bind  the  company.  Farmers'  Ins.  Co.  v. 
Taylor,  73  Pa.  342.     1873. 

§  20.  Upon  an  issue  as  to  value  of  farm  buildings 
evidence  may  be  received  of  what  was  paid  for  a  certam 
farm  within  two  miles  distance  three  years  prior  to  the 
fire.    Haines  v.  Republic  Fire  Ins.  Co.  2  Ins.  L.  J.  833. 

1873.    N.  II. 

§  21.  Certificate  of  notary  or  magistrate  is  not  com- 
petent evidence  as  to  value,  t'arrell  v.  ^tna  Fire  Ins.  Co. 
TBaxt.  542.     1*^74. 

§  22.  Witness  was  asked,  "  State  whether  or  not 
you  complied  substantially  with  the  conditions  of  the 
policy  issued  to  you  by  the  Andes  Ins.  Co.  on  the  first  of 
April  last  ? "  He  answered  under  objection,  "  I  think  I 
did;  I  did."    Held,  that  the  question  was  improper  as 


m 


■'*  111 


1' 


15" 


ll 


106 


EVTDENCE. 


being  too  general  and  leading,  as  the  answer  would  neces- 
sarily be  a  conclusion  of  law.  Daniels  v.  Andes  Ins.  Co.  2 
Mont.  78.     1874. 

§  23.  Prior  policy  covering  goods  in  question  and 
known  upon  its  expiration  to  company's  agent,  who  issues 
a  new  one  for  same  amount,  is  competent  evidence  of 
value,  it  being  shown  that  the  quantity  and  value  remains 
the  same  up  to  the  time  of  the  fire,  uulf  City  Ins.  Co.  v. 
Stephens,  51  Ala.  121.     1874. 

§  24.  Policy  provided  that  any  mortgage  made  sub- 
sequently to  the  insurance  must  be  notified  to  the  secreta- 
ry in  writing  forthwith,  otherwise  it  would  be  void. 
Held^  that  such  condition  was  not  complied  with  by  de- 
posit of  such  notice  in  the  mail  properly  addressed,  with- 
out proof  of  its  receipt.  McCann  v.  Waterloo  County  Fire 
Ins.  Co.  34  Up.  Can.  Q.  B.  376.     1874. 

§  25.  When  assured  holds  policy  upon  goods  in  store, 
for  which  he  holds  warehouse  receipts,  in  case  of  loss,  it  is 
not  necessary  to  prove  the  actual  identity  of  the  goods  as 
described  in  the  receipt,  when  it  is  shown  that  goods  of 
the  same  character,  kind  and  quantity  were  in  the  build- 
ing in  question  at  the  time  the  policy  was  obtained  and 
at  the  time  of  the  fire.  Wilson  v.  Citizens'  Ins.  Co,  19  L. 
C.  Jurist,  175.     1875. 

§  26.  A  latent  ambiguity  in  a  description  is  remova- 
ble by  parol  testimony.  Bowman  v.  Agricultural  Ins.  Co. 
59  N.  Y.  521.     1875. 

§  27.  A  clause  in  policy  making  loss  payable  to  a 
certain  person  as  interest  migiit  appear,  does  not  necessi- 
tate proof  of  any  interest  by  him  in  the  insured  property. 
Clay  Ins.  Co.  v.  Huron  Man.  Co.  31  Mich.  346.     1875. 

§  28.  When  it  is  established  by  the  testimony  in 
connection  with  the  laws  of  matter,  that  the  goods  for 
which  assured  claims  a  total  loss  were  not  in  building  at 
time  of  fire,  a  verdict  for  assured  will  be  set  aside  as 
against  the  evidence.  Lycoming  Fire  Ins.  Co.  v.  Rubin,  79 
ni  402.     1875. 


EVIDENCE. 


107 


§  29.  An  error  in  admitting  improper  evidence  is  not 
cured  by  a  direction  to  jury  to  disregard  it.  Lycoraisg 
Fire  Ins.  Co,  v.  Rubin,  79  El.  402.     i875. 

§  30.  Counsel  for  company  is  a  competent  witness  in 
its  behalf.  Davis  v.  Canada  Farmers  Ins.  Co.  39  Up.  Can. 
Q.  B.  452.     1876. 

§  31.  The  failure  of  assured  to  call  as  a  witness  one 
who  was  his  clerk  at  the  time  of  the  fire,  to  prove  value 
of  his  goods,  is  a  proper  subject  of  remark  by  company's 
counsel  in  presentation  of  the  case  to  the  jury.  Fowler 
V.  Old  North  State  Ins.  Co.  74  N.  C.  89.     1876. 

§  32.  Entries  upon  broker's  books  may  be  competent 
as  bearing  upon  question  of  mistake  and  credibility  of 
broker  and  his  clerks.  Standard  Oil  Co.  v.  Triumph  Ins. 
Co.  64N.  Y.  85.     1876.    Affi'g  3  Hun,  591. 

§  33.  A  letter,  being  an  offer  of  compromise,  and 
containing  no  statement  which  can  be  separated  from  the 
offer  and  convey  the  idea  which  was  in  the  witness'  mind, 
is  not  admissible  in  evidence.  Home  Ins.  Co.  v.  Bait. 
Warehouse  Co.  3  Otto,  527.     1876. 

§  34.  Evidence  of  statements  or  pluns  of  adjustment 
made  by  experts,  may  be  properly  received,  not  as  evi- 
dence of  facts  stated  in  them,  but  for  the  purpose  of  as- 
sisting the  jury  in  calculating  amount  of  liability,  upon 
the  several  hypotheses  of  fact  stated  in  them,  jury  being 
left  free  to  accept  either  hypothesis  or  reject  all.  Home 
Ins.  Co.  V.  Bait.  Warehouse  Co.  3  Otto,  627.     1876. 

§  35.  A  letter  written  by  agent  of  other  companies, 
containing  statement  "  all  my  companies  have  paid,  and  I 
see  no  reason  why  the  others  should  not  pay,"  cannot  be 
used  on  cross-examination  of  defendant  s  manager  and 
witness  for  purpose  of  contradicting  him.  Kaler  v. 
Builders'  Mutual  Fire  Ins.  Co.  120  Mass.  833.     1876. 

§  36.  Any  person  acquainted  with  property  and  its 
value,  or  the  value  of  like  property,  is  a  competent  wit- 


i%  -1 


!ii 


108 


EVIDENCE. 


I  iij  •; 


ness  to  prove  its  worth.     Lycoming  Ins.  Co.  v.  Jackson, 
83  111.  302.     1876. 

§  37.  Testimony  of  experts  is  not  admissible  to  prove 
the  meaning  of  the  terms  "  Dry  Goods  and  Groceries  "  in 
a  place  other  than  the  one  where  policy  was  issued.  Aa 
to  whether  such  testimony  would  be  admissible  if  con- 
nected with  the  place  where  policy  was  issued  query  f 
Germania  Fire  Ins.  Co.  v.  Francis,  52  Miss.  458.     1876. 

§  38.  The  evidence  of  a  custom  among  brokers  may 
be  admissible.  It  is  competent  at  least  to  explain  con- 
duct of  parties,  and  how  they  regard  verbal  arrangements 
and  the  acts  necessary  to  be  done  to  consummate  it.  Stan- 
dard Oil  Co.  V.  Triumph  Ins.  Co.  64  N.  Y.  85.  1876. 
Affi'g  3  Hun,  591. 

§  39.  An  averment  of  ownership  is  sustained  by 
proof  of  an  insurable  interest.  Andes  Ins.  Co.  v.  Fish,  71 
111.  620.  1874.  Lycoming  Ins.  Co.  v.  Jackson,  83  111. 
302.  1876.  Rockford  Ins.  Co.  v.  Nelson,  65  111.  415. 
1872. 

§  40.  Statements  of  assured  are. not  admissible  in  ev- 
idence against  a  party  to  whom  policy  is  made  payable 
and  who  brings  the  action.  Smith  v.  Exchange  Fire  Ins. 
Co.  8  Jones  &  Sp.  492.     1876. 

§  41.  Mailing  a  letter  properly  stamped  and  addressed 
is  evidence  tending  to  show  that  it  was  received,  but  there 
is  no  conclusive  presumption,  not  even  a  legal  presump- 
tion, that  it  reaches  its  destination.  Edwards  v.  Missis- 
sippi Valley  Ids.  Co.  1  Mo.  App.  192.     1876. 

§  42.  Blank  form  in  use  by  a  company  may  be  suffi- 
cient secondary  evidence  of  the  conditions  in  original,  but 
not  of  the  description  of  the  property,  if  company  has  kept 
no  copy  of  the  latter.  Johnson  v.  Canada  Farmers'  Ins. 
Co.  28  Up.  Can.  C.  P.  211.     1877. 

§  43.  In  the  absence  of  sufficient  evidence  of  written 
description  of  property  in  the  policy,  court  will  assume 
that  it  is  the  same  as  contained  in  the  application.     John- 


EVIDENCE. 


109 


jkson, 


As 

con- 

lery  f 


415. 


gon  V.  Canada  Farmers'  Ins.  Co.  28  Up.  Can.  C.  P.  211. 

1877. 

§  44.  One  wbo  has  charge  of  the  business  carried  on 
in  a  manufactoiy,  with  special  opportunity  to  know,  and 
has  actual  knowledge  of  the  details  and  processes  of  the 
manufacturing  and  liability  to  fire,  may  give  his  opinion 
as  to  whether  the  risk  is  or  is  not  increased  by  reason  of 
a  change  in  business.  Brink  v.  Merchants'  Ins.  Co.  49 
Vt.  442.    1877. 

§  45.  An  allegation  of  performance  of  condition  al- 
lows proof  of  a  waiver.     Levy  v.  Peabody  Ins.  Co.  10  W. 

Va.  560.     1877. 

§  46.  In  an  action  by  an  insurance  company  against 
a  railroad  company  to  recover  amount  paid  for  a  loss 
caused  by  sparks  from  engines  of  latter,  proof  of  prior  and 
subsequent  emission  of  sparks  by  defendant's  engines  is 
admissible.  Home  Ins.  Co.  v.  Penn.  R.  R.  Co.  11  Hun, 
182.  1877.  In  such  an  action  interest  is  part  of  the  dam- 
ages, and  its  allowance  a  matter  of  discretion  with  jury. 
Id. 

§  47:  It  is  not  competent  to  corroborate  an  oflScer  of 
company,  when  not  impeached,  by  proof  by  himself  of  his 
general  course  of  dealing,  ard  the  extent  and  limit  of  his 
powers,  in  regard  to  waiver.  Adams  v.  Greenwich  Ins. 
Co.  70  N.  Y.  166.     1877.     Affi'g  9  Hun,  45. 

§  48.  Upon  issue  as  to  value,  it  is  proper  to  show 
what  the  land  sold  for  after  the  buildings  were  destroyed, 
as  affording  evidence  of  the  value  of  the  buildings  when 
connected,  with  proof  of  what  both  together  had  before 
been  offered  for  at  Hale,  Bardwell  v.  Conway  Ins.  Co. 
122  Mass.  90.     1877. 

§  49.  Assured  has  a  right,  at  the  trial  upon  issue  as 
to  value,  to  inquire  as  to  the  nature  and  quality  of  the 
different  parts  of  a  building,  the  cellar  inclusive,  of  any 

ferson  acquainted  with  building.     Bardwell  v.  Conway 
ns.  Co.  122  Mass.  90.     1877. 


■  »'i  ?  r 


a 


m 


lilli 


110 


EVIDENCE. 


'    If     i 


m  '. 


§  50.  Assured  is  not  bound  by  the  valuation  of  an- 
other company,  upon  which  a  policy  had  been  issued  and 
accepted  by  him.  Such  evidence  is  not  admissible.  Bard- 
well  V.  Conway  Ins.  Co.  122  Mass.  90.     1877. 


§  5) 


ilnsi 
a  wi 


Company  has  no  ground  of  exception  in  the  ex- 
evidence  offered  by  it  attacking  the  validity  of 
.  strument  in  evidence,  and  constituting  an  es- 
sential element  of  one  of  its  defenses.  Bardwell  v.  Con- 
way Irs.  Co.  132  Mass.  90.     1877. 

§  52.  As.-JurcLl  nay  be  questioned  as  to  what  valua- 
tion the  agent  of  the  company  put  on  the  property  of  the 
insured  at  the  time  of  the  issue  of  the  policy,  and  if  such 
value  is  the  same  in  the  answer  as  that  stated  in  the  pol- 
icy it  is  admissible,  not  being  in  conflict  with  the  written 
contract,  but  in  confirmation  of  it.  Southern  Mut.  Ins.  Co. 
V.  Frear,  29  Grat.  255.     1877. 

§  53.  Declarations  of  an  adjuster,  made  in  the  dis- 
charge of  his  duty,  are  properly  admissibhs  in  evidence. 
Brink  v.  Merchants'  Ins.  Co.  49  Vt.  442.     1877. 

§  54.  Service  of  a  notice  required  by  a  condition  in 
the  policy  by  mail,  raises  a  presumption  that  it  was  re- 
ceived ;  but  such  presumption  is  not  conclusive,  and  may 
be  rebutted  by  other  evidence  that  such  notice  was  never, 
in  fact,  received.  Plath  v.  Minnesota  Farmers'  Mut.  Ins. 
Co.  23  Minn.  479.     1877. 

§  55.  In  a  country  village,  where  there  are  few  trans- 
fers of  real  estate,  the  price  which  a  building  would  bring 
at  present  sale  for  cash,  is  not  a  fair  criterion  to  determine 
valuation.  Germania  Fire  Ins.  Co.  v.  Casteel,  7  Ins.  L.  J. 
253.     1877.     III. 

§  5G.  Mailing  of  a  notice  or  paper  to  company  in  an 
envelope  properly  addressed  and  stamped  is  presumptive 
evidence  of  its  receipt,  and  if  there  is  no  evidence  of  its 
not  being  received,  will  sustain  a  finding  that  it  was  re- 
ceived. Shannon  v.  Hastings  Mut.  Ins.  Co.  2  Tupper,  81. 
1877.     Confirming  26  C.  P.  380. 


EVIDENCE. 


Ill 


§57.  Property  was  first  insured  by  a  policy  dated 
February  16,  1872,  and  expiring  February  12,  1873.  At 
time  it  was  issued  there  was  a  mortgage  existing,  which, 
under  the  terms  of  the  policy,  rendered  it  void.  Subse- 
quently another  policy  was  issued  to  same  parties  upon 
same  property,  containing  a  clause  making  loss,  if  any, 
payable  to  the  mortgagees.  This  policy  was  issued  Octo- 
ber 12,  1872,  for  one  year.  February  13,  1873,  the  first 
policy  was  continued  in  force  by  a  renewal  receipt.  Held, 
in  suit  upon  first  policy,  that  evidence  was  sufficient  to 
sustain  finding  of  jury  that  defendant,  when  it  renewed 
the  policy,  had  knowledge  of  the  mortgage.  State  Ins. 
Co.  V.  Todd,  6  Ins.  L.  J.  893.     1877.     Pa. 

§  58.  Upon  an  issue  as  to  whether  agent  who  issued 
policy  had  notice  of  the  existence  of  other  insurance  it  is 
proper  to  ask,  such  agent  being  sworn  as  a  witness  on  the 
trial,  whether  there  was  any  rule  that  he  followed,  when 
be  insured  a  piece  of  property,  with  reference  to  the 
amount  of  insurance,  "  assuming  the  value  of  the  property 
to  have  been  to  your  knowledge  $1,800,  and  no  more, 
with  $600  insurance  already  upon  it,  would  you  have  put 
$1,200  more  upon  it?"  Roberts  v.  Continental  Ins.  Co^ 
41  Wis.  321.     1877. 

§  59.  An  action  against  an  insurance  company  must 
be  tried  upon  the  facts  as  they  existed  at  the  time  it  was 
brought,  unless  subsequently  occurring  fiicts  be  special- 
ly pleaded.  People's  Ins.  Co.  v.  Straehle,  2  Cin.  Sup.  Ct. 
186.     1878. 

§  60.  Evidence  of  what  another  company  has  paid 
to  the  assured  on  account  of  the  same  fire  may  be  prop- 
erly received  as  showing  what  has  been  paid  in  reduction 
of  defendant's  risk.  If  the  loss  should  prove  to  be  less, 
its  liability  is  reduced  in  proportion.  Pennsylvania  Fire 
Ins.  Co.  V.  Kittle,  39  Mich.  51.     1878. 

§  61.  It  is  error  to  reject  proof  of  agency  where  as- 
sured relies  upon  waiver  of  condition  requii'ing  written 
consent.  McCabo  v.  Farm  Buildings  Fire  Ins.  Co.  14 
Hun,  602.     1878. 


•■it 


19 1 II II 


112 


EVIDENCE. 


§  62.  A  deed  is  not  admissible  in  evidence  to  show 
a  change  of  title  or  possession,  without  proof  of  record- 
ing,  delivery,  or  possession  under  it.  Humphry  v.  Hart- 
ford Fire  Ins.  Co.  15  Blatch.  35.     1878. 

§  (i3.  Oral  evidence  is  admissible  to  show  what 
property  was  intended  to  be  covered  by  general  language 
in  policy.     Snow  v.  Carr,  61  Ala.  363.     1878. 

§  64.  Secondary  evidence  may  be  given  of  policies 
cancelled  and  returned  to  home  office  of  company  in  a 
foreign  country.     Snow  v.  Carr,  61  Ala.  363.     1878. 

§  65.  It  is  error  to  exclude  evidence  bearing  upon 
question  as  to  knowledge  of  the  agent,  of  facts  existing 
at  the  time  he  takes  an  application  for  insurance.  Han- 
son V.  Milwaukee  Mechanics'  Ins.  Co.  45  Wis.  321.     1878. 

§  66.  The  fact  that  the  assured,  being  required  by 
the  policy  to  save  the  property  insured,  gave  instructions 
"  not  to  interfere  unless  all  could  be  saved,"  to  prevent 
dispute  as  to  what  was  consumed,  is  immaterial,  when  it 
appears  that  it  was  impossible  to  have  saved  anything. 
Willis  V.  Germania  Ins.  Co.  79  N.  C.  285.     1878. 

§  67.  Evidence  by  experts  of  manner  of  adjustment 
of  losses  is  incompetent  unless  assured  has  knowledge 
thereof  at  time  of  the  issue  of  policy,  or  at  least  that  the 
custom  was  so  general  and  well  understood  that  it  must 
have  entered  into  and  formed  part  of  the  contract.  Wil- 
liams V.  Niagara  Fire  Ins.  Co.  50  Iowa,  561.     1879. 

§  68.  In  case  of  a  mutual  mistake  between  the  par- 
ties, parol  evidence  is  admissible  to  reform  the  policy. 
Vilenberger  v.  Protective  Mutual  Fire  Ins.  Co.  89  Pa.  464. 
1879.  8.  p.  Brugger  v.  State  Investment  Ins.  Co.  5  Saw- 
yer, 304. 

§  69.  A  letter  from  company  to  assured  after  the 
fire,  being  a  written  declaration  of  an  officer  in  regard  to 
his  construction  of  the  policy,  is  not  admissible  in  evi- 
dence as  against  the  assured.  Planters'  Mut.  '^un.  Co.  v. 
Engle,  52  Md.  468.     1879. 


EVIDENCE. 


113 


Partridge  v.  Commercial  Fire  Ins. 


§  70.  Assured  was  allowed  to  prove,  under  objection, 
that  he  told  people,  who  put  up  at  his  house,  that  he  did 
not  keep  a  hotel.  Held,  that  this  was  conversation  char 
acterizing  his  act,  and  was  proper  to  show  in  what  waj- 
he  received  his  guests. 
Co.  17  Hun,  95.     1879. 

§  71.  Policy  provided  that  it  should  be  void  if 
"  camphene,  burning  fluid,  or  refined  coal  or  earth  oils  are 
used  on  the  premises."  Held,  that  whether  kerosene  oil 
was  a  coal  or  earth  oil,  could  not  be  judicially  noticed,  or 
found  without  evidence.  Bennett  v.  N.  B.  <fe  M.  Ins.  Co. 
8  Daly,  471.     1879.    Afli'd  81  N.  Y.  273. 

§  72.  Evidence  of  what  assured  said  when  he  bought 
the  property,  as  to  his  intention  to  keep  a  hotel,  is  prop- 
erly excluded,  as  it  does  not  tend  to  show  what  he  in  fact 
did.  Partridge  v.  Commercial  Fire  Ins.  Co.  17  Hun,  95. 
1879. 

# 

§  73.  Statement  in  proofs  of  loss  of  other  insurance 
is  sufficient  proof  of  its  existence.  Continental  Ins.  Co.  v. 
Ilulman,  92  111.  145.     1879. 

§  74.  Inspection  by  agent  and  agreement  by  him  as 
to  value  is  prima  facie  evidence  of  value.  Virginia  Fire 
Ins.  Co.  V.  Feagin,  62  Ga.  515.     1879. 

§  75.  When  policy  insures  party  upon  "  his  interest 
as  lessee,"  character  and  extent  of  such  interest,  as  made 
known  to  agent  of  company  on  obtaining  the  insurance,  is 
competent  evidence,  in  connection  with  other  facts,  to 
show  purpose  and  intent  of  the  contracting  parties. 
Creightou  v.  Homestead  Fire  Ins.  Co.  17  Hun,  78.     1879. 

§  76.  A  carpenter  qualified  to  testify  as  to  value  of 
a  building  in  one  j)lace,  is  also  qualified  to  testify  as  to 
value  of  same  in  another,  it  being  shown  that  the  dift'er- 
cnce  is  only  matter  of  freight.  Hills  v.  Home  Ins.  Co.  9 
lus.  L.  J.  814.     1879.    Mass. 

§  77.  Testimony  of  a  witness  was  received  in  connec- 
tion with  books  of  his  firm  produced  in  court,  containing 

Vol.  ir.— 8 


l^i 


Ill 


EVIDENCE. 


entries  of  sales  made  to  assured,  though  witness  had  no 
personal  knowledge  of  the  sales  of  the  goods  charged,  and 
did  not  himself  make  the  entries,  it  being  shown  tiiat  the 
bills  had  been  rendered  to  the  assured  and  paid  by  him, 
and  that  duplicates  could  have  been  obtained  if  assured 
had  applied  for  them.  Held,  admissible  upon  issue  as  to 
ability  of  assured  to  furnish  duplicate  bills  as  required 
under  condition  in  the  policy.  Mispelhorn  v.  Farmers' 
Fire  Ins.  Co.  9  Ins.  L  J.  411.    1879.    Md. 

§  78.  It  is  not  error  to  exclude  question  to  witness 
whether  "  an  average  clause  in  a  policy  is  favorable  or  un- 
favorable to  an  insurance  company."  Standard  Oil  Co.  v. 
Amazon  Ins.  Co.  79  N.  Y.  506.     1880. 

§  79.  Plaintiff  was  asked,  "  So  far  as  you  could  indi- 
vidually, did  you  get  these  proofs  of  loss  forwarded  as 
soon  as  it  was  possible  for  you  to  do  so?"  Objected  to, 
allowed,  and  exception.  /7e/</,  competent.  Brink  v.  Han- 
over Fire  Ins.  Co.  80  N.  Y.  108.     1880. 

§  80.  The  daily  report  of  company's  agent  is  not  ad- 
mis!<ible  in  evidence  against  the  assured.  Thayer  v.  Prov- 
idence Ins.  Co.  70  Me.  /)31.     1880. 

§  81.  Some  knowledge  of  cost  or  market  value  of 
building,  acquired  as  dealer  or  builder,  renders  witness 
competent  to  testify  as  to  value.  The  weight  of  such  tea- 
timony  is  to  be  determined  by  the  jury.  Woodruff  v. 
Imperial  Fire  Ins.  Co.  83  N.  Y.  133..     1880. 

§  82.  Conversations  with  a  solicitor  or  broker  may 
be  competent  when  there  is  other  evidence  from  which  it 
may  be  inferred  that  the  substance  of  the  same  was  com- 
municated to  the  company's  agent.  Fishbeck  v.  Phaniix 
Ins.  Co.  54  Cal.  422.  18S0.  '"s.  p.  Batchelor  v.  People's 
Ins.  Co.  40  Conn.  .00.     1873. 

§  83.  When  the  question  as  to  whether  a  misdescrip- 
tion in  the  policy  was  the  cause  of  the  insurance  being 
obtained  at  a  loss  rate  than  it  wouhl  otherwise  be  subject 
to,  it  is  permissible  to  ask  the  agent  of  the  company  ui)on 
a  trial,  "  what  were  the  usual  rates  about  the  time  the 


EVIDENCE. 


116 


policy  was  issued  upon  the  same  kind  of  property  ? "  and 
what  he  knew  as  to  the  actual  rates  charged  at  that  time 
by  other  companies  upon  designated  buildings,  being  of 
the  same  class.  Martin  v.  Franklin  Ins.  Co.  13  Vroom,  N. 
J.  L.R.  46.     1880. 

§  84.  Upon  an  iessue  of  willful  burning,  evidence  that 
property  not  covered  by  the  insurance,  belonging  to  the 
assured  and  near  relatives,  was  destroyed  by  the  fire,  is 
admissible  as  bearing  upon  the  improbability  of  burning 
by  design.  Evidence  tending  to  show  that  assured  had 
loose  notions  respecting  the  destruction  of  the  property 
insured  is  admissible,  the  time  when  such  statements  were 
made  affecting  the  weight  of  the  testimony  and  not  its  ad- 
missibility. Evidence  of  statements  made  by  assured  as 
to  his  intention  to  go  to  another  place,  and  object  in  going 
there,  morning  of  day  previous  to  fire,  is  admissible. 
Farmers'  Mutual  Ins.  Co.  v.  Crampton,  9  Ins.  L.  J.  549 
1880.    Mich. 

§  85.  Local  agent  testified  that  the  general  agent  of 
defendant,  a  Mr.  Little,  was  at  location  of  the  insured 
property  after  the  fire,  and  then  investigated  the  circum- 
stances of  the  loss.  Plaintiff  then  testified  that  af)Out 
the  same  time  a  person  called  upon  him,  representing 
himself  as  Mr.  Little,  general  agent  of  the  defendant,  and 
inquired  about  certain  foreclosure  proceedings  and  the 
fire,  and  they  had  a  conversation  upon  the  subject.  He 
had  never  before  seen  Mr.  Little,  and  all  he  knew  about 
his  identity  was  what  he  then  learned  from  him.  The 
issue  being  upon  company's  knowledge  of  the  foreclosure 
proceedings,  relied  upon  to  effect  an  estoppel,  company's 
counsel  objected  to  the  evidence  as  hearsay  up')n  the 
grounJ  that  there  was  no  sufficient  proof  of  identity. 
Held,  that  it  could  not  be  assumed  that  the  person  was 
an  impostor,  and  that  it  was  for  the  jury  to  determine 
whether  he  was  the  identical  Little.  Titus  v.  Glen's 
Falls  Ins.  Co.  81  N.  Y.  410.     1880. 

§  80.  The  testimony  of  an  insurance  expert  that 
"  companies  would  not  insure  unoccupied  buildings  on  ac- 
count of  increased  risk,  and  that  a  risk   was  regarded  a8 


m 


1.1. 


1 1.'  I, 


116 


EVIDENCE. 


!  li 


greater  or  less  according  to  amount  of  insurance  and  value 
of  the  property  "  is  incompetent.  Thayer  v.  Providence 
Ins.  Co.  70  Me.  531.     1881. 

§  87.  When  application  is  made  part  of  the  policv 
they  both  constitute  the  contract,  and  both  must  be  proved, 
even  although  the  former  is  in  possession  of  the  company. 
In  such  a  case  it  is  the  duty  of  the  plaintiff  to  require  its 
production  upon  the  trial  by  proper  notice.  Farmers'  Ing. 
Co.  V.  Meckes,  10  Ins.  L.  J.  707.     1881.     Pa. 

§  88.  Evidence  of  custom  is  inadmissible  unless  it  is 
shown  that  contract  was  made  in  i-eference  to  it.  Conti- 
nental Ins.  Co.  V.  Randolph,  10  Ins.  L  J.  387.     1881.   Ky. 

§  89.  Policy  prohibited  the  use  of  camphene,  spirit 
gas  or  any  burnmg  fluid  or  chemical  oil.  It  was  proved 
that  kerosene  was  used.  Held,  that  a  court  could  not  pre- 
sume, in  the  absence  of  evidence,  that  kerosene  is  included 
in  t'le  words  burning  fluid.  Mark  v.  National  Fire  Ins. 
Co.  24  Hun,  665.    1881. 

§  90.  It  is  not  error  to  admit  testimony  of  the  as- 
sured that  he  did  not  read  the  policy  when  it  was  deliv- 
ered, as  it  has  a  tendency  to  show  that  he  relied  on  the 
agent's  acts.  Miaghan  v.  Hartford  Fire  Ins.  Co.  24  Hun, 
58.     1881. 

§  91.  Proofs  of  loss  are  evidence  only  of  compliance 
with  condition  in  policy.  Baile  v.  St.  Joseph  F.  and  M. 
Ins.  Co.  10  Ins.  L.  J.  657.  1881.  Mo.  When  intro- 
duced by  company  to  sustain  defense  of  fraud  and  false 
swearing,  they  do  not  become  evidence  of  the  loss  in 
favor  of  the  assu^  '}.  Brown  v.  Clay  Ins.  Co.  68  Mo.  133. 
1878.  Semble,  duty  of  counsel  in  all  cases  to  ask  for 
an  instruction  limiting  the  evidence  to  purpose  for  wdiich 
it  is  competent.  Williams  v.  Hartford  Ins.  Co.  54  Cal. 
442.     1880. 

See  Adjustment,  §  7.  10.  Agent,  17,  33,  74,  80.  Burden  of  Proof,  1,  3. 
Burning  by  Design,  1,  ?.  By-Law3  and  Conditions,  2.  Cancellation,  5,  18. 
Certificate,  5,  17.  Construction,  3.  Damages,  1,  12,  17.  Distance  Between 
Buildings,  1.  EncumUances,  15.  Estoppel,  3,  17,  20.  Foreign  Company, 
7.    Goods  in  Trust,  8.     Increase  of  Risk,  2,  20,  23,  25.     Interest  in  Policy, 


EXAMINATION  UNDER  OATH. 


117 


10.  Mortgagor  and  Mcr:gagee,  27,  37.  Mutual  Company,  3,  13,  38,  122. 
Notice  of  Lo93,  17.  Othi  r  Insurance,  15, 25.  Over-valuation,  8.  Parol  con- 
tract, 6,  10,  13,  19,  2i.  Pleading  and  Practice,  16,  20,  21.  Premium,  3.  22. 
Proofs  of  Loss,  13,  31,  70.    Rebuild,  &o.,  7.     Reformation,  1,  11.    Renewal, 

11.  Storing  and  Keeping,  1,  5,21.  Title,  5,  21.  Usage  and  Custom,  1,2, 
3,  5,  6,  9.  Use  and  Occupation,  13.  Vacant  or  Unoccupied,  6.  Waiver,  1, 
37,  40,  57.     Warranty  and  Representation,  11,  13,  14,  65,  81,  93. 


EXAMINATION  UNDER  OATH. 

§  1.  Personal  examination  of  assured  is  no  part  of 
the  proofs  of  loss,  so  as  to  extend  period  for  the  loss  be- 
coming due  and  payable.  Winneshiek  Ins.  Co.  v.  Schuel- 
ler,  60  111.  465.     1871. 

§  2.  Semble  that  a  demand  made  upon  the  party  to 
whom  the  loss  is  made  payable,  that  the  assured  shall  sub- 
mit to  an  examination,  is  sufficient  to  impose  on  him  the 
duty  of  procuring  the  assured  for  that  purpose.  State 
Ins.  Co.  V.  Maackens,  9  Vroora,  N.  J.  L.  R.  564.     1876. 

§  3.  Mere  informal  conversation  or  declarations  that 
company  desires  the  assured  to  submit  to  an  examination 
does  not  impose  that  duty  upon  him.  The  demand  for  an 
examination  must  be  made  with  such  clearness  and  dis- 
tinctness that  the  party  shall  be  fully  informed  that  the 
company  means  to  insist  upon  having  it.  State  Ins.  Co. 
V.  Maackens,  9  Vroom,  N.  J.  L.  R.  564.     1876. 


*  \H  i 


.§4- 


Examination  of  assured  by  adjuster  waives  con- 
dition in  regard  to  notice.  Badger  v.  Glen's  Falls  Ins. 
Co.  49  Wis.  389.     1880. 


§  5.  When  policy  provides  that  "  assured  shall  sub- 
mit to  an  examination  or  examinations  under  oath,  and 
subscribe  same  when  reduced  to  writing,"  assured  is  bound 
only  to  answer  such  questions  as  have  a  material  bearing 
upon  the  insurance  and  the  loss.  If  he  declines  to  answer 
some  of  the  questions  put  to  him,  and  if  an  appellate 


•il 


■i'Tl 


ttfa^j 


118 


EXECUTIONS. 


court  cannot  perceive  that  such  questions  have  such  bear- 
ing, it  will  assume  that  he  was  justified  in  his  refusal  to 
answer.  Titus  v.  Glen's  Falls  Ins.  Co.  81  N.  Y.  410. 
1880. 

See  Estoppel,  §4.    Payment  of  Loss,   1.    Pleading  and  Practice,  6. 
Proofs  of  Loss,  78,  79. 


EXECUTIONS. 

§  1.  Condition  in  policy  providing  that  it  should  be 
void  if  property  was  levied  upon  or  taken  into  custody 
by  the  law  must  be  construed  as  meaning  rightful  levies. 
Mills  V.  Ins.  Co.  5  Phil.  Kep.  28.    1862. 

§  2.  Condition  provided  that  the  insurance  by  this 
policy  shall  cease  au  the  time  that  the  property  hereby  in- 
sured shall  be  levied  on  or  taken  into  possession  or  cus- 
tody under  any  proceeding  in  law  or  equity.  Held,  that 
the  proceedings  under  mechanics'  lien  law  and  issue  of  an 
execution  and  advertisement  of  the  property  for  sale  does 
not  constitute  a  breach  of  the  condition  which  has  special 
if  not  exclusive  reference  to  personal  property  which, 
when  levied  on,  is  usually  seized  in  fact  and  remains  in 
possession  of  the  sheriff  until  it  is  sold.  Ins.  Co.  v.  O'Mal- 
ey,  82  Pa.  400.     1876. 

§  3.  Policy  provided  that  it  should  be  void  "  at  and 
from  the  time  property  insured  should  be  levied  upon 
or  taken  into  possession  or  custody  under  any  proceeding 
in  law  or  equity."  IlelJ,  that  a  mere  technical  seizure, 
unaccompanied  by  any  change  of  possession,  or  increase 
of  risk,  was  not  sufficient  to  avoid  the  policy.  Smith 
V.  Farmers'  Ins.  Co.  8  Ins.  L  J.  828.     1879.     Pa. 

§  4.  Policy  provided  that  insurance  under  it  should 
cease  at  and  from  the  time  the  property  should  be  lev- 


EXPLOSIONS. 


119 


ied  on  or  taken  into  possession  or  custody  under  any 
proceeding  in  law  or  equity,  and  should  there  during 
the  life  of  the  policy  an  encumbrance  fall  or  be  exe- 
cuted upon  the  property  of  insured,  so  as  to  reduce  the 
real  interest  of  the  insured  to  a  sum  equal  to  or  below 
the  amount  insured,  and  he  neglects  or  fails  to  obtain 
consent  of  the  company,  then  and  in  that  case  it  should 
be  void.  Held,  that  a  mere  technical  seizure  on  an  exe- 
cution unaccompanied  by  any  show  of  opposition  or  in- 
creased risk  was  not  sufficient  to  avoid  the  policy.  Smith 
V.  Farmers'  and  Mechanics'  Mut.  Fire  Ins.  Co.  89  Pa.  2»7. 
1879. 

§  5.  An  illegal  attachment  does  not  avoid  policy 
under  condition  that  insurance  should  "  cease  from  time 
property  is  levied  on  or  taken  into  possession  or  custody 
under  any  proceeding  in  law  or  equity."  Miami  Valley 
Ins.  Co.  V.  Stanhope,  10  Ins.  L  J.  159.  1881.  Ohio  Dist. 
Court. 

Sec  Alienation,  §  16,  1 7. 


EXPLOSIONS. 

§  1.  When  policy  provides  that  company  should  not 
be  liable  for  an  explosion  by  gunpowder  it  must  be  con- 
strued to  1)6  applicable  only  to  a  fire  originat'ng  from  such 
an  explosion  in  the  building  insured.  When  the  latter  is 
already  burning  and  to  prevent  the  spread  of  the  flames 
in  tiie  absence  of  water,  gunpowder  is  used  to  blow  it  up, 
company  is  liable.  Greenwald  v.  Ins.  Co.  3  Phil.  Rep.  323. 
1859. 

§  2.  A  condition  excei)ting  liability  for  damages  by 
explosion  includes  an  explosion  of  engine  covered  by  the 
policy,  although  engine  incidental  and  essential  to  the  busi- 
ness. I  lay  ward  v.  Liverpool,  Load.  &  G.  Ins.  Co.  2  Abb. 
Ct.  App.  Dec.  349.     1867. 


ii 


S20 


EXPLOSIONS. 


i  !!!| 


§  3.  Policy  provided  that  it  should  not  be  liable  for 
<3amage  occasioned  "by  the  explosion  of  a  steam  boiler,  uor 
from  damage  resulting  from  such  explosion,  nor  explosions 
caused  by  gunpowder,  gas,  or  other  explosive  substances." 
Fire  resulted  from  an  explosion  of  gas.  Held,  that  the  ex- 
emption from  liability  for  damage  occasioned  by  explosion 
was  limited  to  the  explosion  of  a  steam  boiler,  and  that  the 
company  was  exempted  from  liability  from  the  eflfect  of 
the  explosion  only  of  the  gas  and  was  liable  for  the  conse- 
quent damages  by  fire.  Boatman's  Ins.  Co.  v.  Parker,  23 
Ohio,  85.     1872. 

§  4.  Policy  provided  that  company  should  not  be  lia- 
ble "for  any  loss  or  damage  hy  fire  caused  by  means  of  an 
invasion,  insuiTection,  riot,  Ac,  *  *  *  nor  for  any  loss 
caused  by  the  explosion  of  gunpowder,  camphene,  or  any 
explosive  substance,  or  explosion  of  any  kind."  Held^  that, 
by  construction,  the  latter  clause  did  not  except  liability 
for  losses  hy  fire  caused  by  explosion.  Commercial  Ins. 
Co.  V.  Robinson,  64  111.  2G5.     1872. 

§  5.  Policy  provided  that  the  company  should  not  be 
liable  for  loss  caused  by  "  explosions  of  any  kind,  unless 
fire  ensues,  and  then  for  the  loss  or  damage  by  fire  only." 
Plaintifl:'  was  engaged  in  business  of  rectifying  spirits. 
There  was  a  small  lamp  standing  in  the  building  brought 
there  by  person  repairing  the  machinery.  Vapor  from  the 
works,  coming  in  contact  with  the  lamp  caused  an  explo- 
sion which  blew  ofl:'  the  roof  and  blew  down  the  walls  and 
greatly  injui'ed  the  machl:iery.  Soon  after  a  fire  started, 
but  the  damage  by  the  fire  was  slight  compared  to  that 
caused  by  explosion.  Jury  found  the  damage  caused  by 
each  separately.  Ikld^  company  not  liable  for  amount  of 
damage  found  to  have  been  caused  by  the  explosion. 
Semhle^  had  the  explosion  occurred  during  the  progress 
of  a  fire  rule  micjlit  be  difi'erent.  Briggs  v.  N.  B.  and  M. 
Ins.  Co.  53  N.  ¥^440.  1873.  Affi'g  GO  Barb.  325.  s.  o. 
5  Benn.  F.  I.  C.  501 ;  2  Ins.  L.  J.  92'.), 

§  6.  There  is  no  presumption  from  a  special  j)remiuni 
charged  for  insuring  an  oil  refinery  that  it  was  the  inten- 
tion of  the  contracting  parties  to  exempt  from  the  printed 


EXPLOSIONS. 


121 


exception  the  explosion  risk ;  in  such  case  it  must  be  as- 
sumed that  the  parties  intended  special  premium  on  ac- 
count of  extra  hazard.  Smiley  v.  Citizens'  Fire  Ins.  Co.  14 
W.  Va.  33.     1878. 

§  7.  Policy  insured  a  petroleum  refinery  and  contained 
usual  condition  providing  that  the  company  should  not  be 
liable  for  a  loss  occasioned  by  explosions  of  any  kind. 
From  the  evidence  of  the  only  witness  sworn  as  to  the 
origin  of  the  fire  it  appeared  that  he  was  standing  in  front 
of  the  boiler  as  the  fireman  was  engaged  in  feeding  it. 
Just  as  the  fireman  shut  up  the  furnace  door  he  saw  some- 
thing just  like  lightning  strike.  The  line  of  light  ran 
into  the  office,  then  back  in  the  receiving-room,  then  the 
whole  thing  was  on  fire.  The  office  did  not  take  fire  at 
first,  but  burned  down  afterwards.  The  stills  of  the  re- 
finery were  running  at  the  time.  At  the  time  the  fire  began 
there  was  no  explosion  at  all.  It  burned  about  five  min- 
utes when  explosions  could  be  heard  in  the  agitator  and 
receiver.  He  saw  the  flash  of  fire  first  in  the  office  as  he 
was  standing  a  little  from  the  door,  and  from  there  it  ran 
into  the  main  building  through  the  door  in  the  brick  wall, 
and  then  the  whole  of  the  inside  of  the  main  building  took 
fire.  He  thought  if  the  door  in  the  brick  wall  had  been 
shut,  the  fire  would  not  have  got  in,  but  he  could  not  get 
there  soon  enough  to  shut  the  door.  Held^  that  the  lire 
was  not  occasioned  by  an  explosion.     Smiley  v.  Citizens' 


Fire  Ins.  Co.  U  W, 


.  ny  an  ( 
.  Va.  33. 


1878. 


§  8.  By  the  sudden  combustion  of  inflammable  gas  an 
explosion  took  place  in  one  of  the  upper  stories  of  the 
building  insured,  which  was  of  such  force  as  to  lift  up  the 
roof  over  the  rear  part  of  the  building,  to  blow  outward 
the  larger  portion  of  the  walls  on  the  two  sides  next  the 
streets,  and  it  caused  the  instantaneous  fall  of  the  whole 
roof.  The  interior  partitions  and  contents  of  the  rooms,  in- 
cluding a  stove  with  a  coal  of  fire  buriiiug  therein,  fell  in 
a  mass  of  ruins  upon  the  assured's  shop  in  the  lower  story. 
Innnediately  after  the  explo/ion  and  fall,  the  fire  caused 
thereby  broke  out  in  the  fall  and  ruins  and  destroyed  the 
property  of  the  insured.     Policy  contained  usual  provision 


122 


EXPLOSIONS. 


'  .111 

'  *i  'is 


making  it  liable  for  the  damage  caused  by  fire  after  an  ex- 
plosion, and  also,  in  addition,  the  following :  "  If  a  build- 
ing shall  fall,  except  as  the  result  of  a  fire,  all  insurance  by 
this  company  on  it  or  its  contents  shall  immediately  cease 
and  determine."  Held,  that  this  last  provision  did  not  in- 
clude the  case  of  the  destruction  of  a  building  by  an  ex- 
plosion within  the  building  itself  and  of  a  fire  immediately 
ensuing  upon  and  connected  wit^  such  an  explosion. 
Dows  V.  Faneuil  Hall  Ins.  Co.  127  Mass.  346.     1879. 

§  9.  Policy  provided  that  company  should  not  be  lia- 
ble for  loss  caused  by  explosion  of  gunpowder,  &c.,  or 
"  any  other  explosive  substance,"  except  only  such  loss  from 
fire  that  may  ensue  therefrom ;  "  nor  shall  the  company  be 
liable  for  any  loss  by  such  fire,  unless  privilege  shall  have 
been  given  in  the  policy  to  keep  such  articles  "  &c.  I/eldy 
that  this  condition  had  no  reference  to  flour  dust,  which, 
while  an  explosive  substance,  was  not  within  the  meaning 
of  the  term  as  used  in  the  policy  in  reference  to  "  keeping." 
Washburn  v.  Ins.  Cos.  9  Ins.  L.  J.  7fil.  1880.  U.  S.  Cir- 
cuit, Ohio.  And  see  Washburn  v.  Western  Ins.  Co.  9  Ins. 
L.  J.  424.     1880.     U.  S.  Circuit,  Ohio. 

§  10.  When  policy  provides  that  company  shall  not 
be  liable  for  a  loss  caused  by  an  explosion  of  any  kind 
unless  fire  ensues,  and  then  for  the  loss  or  damage  by  fire 
only,  company's  liability  under  the  policy  is  not  modi- 
fied when  it  is  shown  that  the  explosion  followed  the  fire 
and  was  an  incident  of  it.  Washburn  v.  Ins.  Cos.  9  Ins. 
L.  J.  761.  1880.  U.  S.  Circuit,  Ohio.  Washburn  v. 
Aitisans'  Ins.  Co.  9  Ins.  L.  J.  68.  1879.  U.  S.  Circuit, 
Pa.  Washburn  v.  Western  Ins.  Co.  9  Ins.  L,  J. 
1880.     U.  S.  Circuit,  Ohio. 

See  Increase  of  Risk,  §  88. 


42.'>. 


FALLING  BUILDING. 

§  1.  Building  must  cease  to  be  such  to  be  "  fallen  " 
within  meaning  of  the  policy.  So  long  as  standing,  how- 
ever depreciated,  it  is  not  fallen.  Firemen's  Ins.  Co.  v. 
Sbolora,  80  111.  558.     1875. 

§  2.  Where  a  portion  of  building  falls,  leaving  three- 
fourths  still  standing,  it  cannot  be  deemed  a  "  fallen  build- 
ing," terminating  the  insurance.  Breuner  v.  Liv.,  Lond. 
&  Globe  Ins.  Co.  51  Cal.  101.     1875. 

8  3.     The  policy  contained  provision  that  "  if  building 
shall  fall,  except  as  the  result  of  a  fire,  all  insurance  on  it 
or  its  contents,  shall  immediately  cease  and  determine." 
The  eastern  and  western  halves  of  the  insured  building 
were  substantially  distinct,  separated  from  each  other  by 
a  brick  partition  which  extended  from  the  front  to  the 
rear  and  from  cellar  to  roof,  though  with  doors  of  com- 
munication in  each  story,  and  each  of  the  two  parts  or 
buildings  were  capable  of  standing  or  falling  by  itself.    In 
each  of  these  two  parts  or  buildings  midway  between  the 
partition  wall  and  the  end  wall  there  was  a  beam  or  girder 
in  each  floor,  extending  from  the  front  to  the  rear,  sup- 
ported by  four  brick  piers  in  the  cellar  and  by  wooden 
posts  in  each  story,  and  upon  which  the  beams  of  the 
floors  rested.     By  tiie  giving  way  of  the  piers  of  the  cellar 
in  the  eastern  part  or  building,  without  the  agency  of  fire, 
the  beam  or  girder  resting  thereon  fell  down  near  the 
ground,  bringing  with  it  the  floors  and  partitions  and  roof 
above,  with  the  goods  and  merchandise  in  each  story,  in  a 
mixed  and  confused  mass,  excepting  only  very  small  por- 
tions of  some  of  the  floors  and  of  the  roof  and  a  single  case 
of  goods.     Only  the  outer  walls  of  this  building,  of  which 
the  brick  partition  walls  separating  it  from  the  adjoining 
building  was  one,  and  an  elevator  five  feet  square  in  one 
corner,  were  uninjured  by  the  full.     After  the  fall  the  fire 
broke  out  whicli  caused  the  injury,  for  which  recovery  was 
Bought  in  this  action,  to  the  goods  which  had  fallen,  and  to 


124 


FRAUD  AND  FALSE  SWEARING. 


the  elevator  and  to  the  surrounding  walls,  with  the  doors 
and  windows  therein,  which  remained  standing.  The  west 
half  of  the  buildins;  remained,  in  all  its  parts,  undisturbed 
and  uninjured.  Held,  that  action  could  not  be  maintained, 
and  that  there  must  be  judgment  for  defendant.  Iluck  v. 
Globe  Ins.  Co.  127  Mass.  306.     1879. 


FRAUD  AND  FALSE  SWEARING. 

§  1.  Circumstances  in  connection  with  the  origin  of 
the  fire  being  suspicious,  a  false  statement  by  the  assured 
in  his  proofs  as  to  his  absence  from  the  premises  at  the 
time  of  the  fire,  avoids  the  insurance.  Smith  v.  Queen 
Ins.  Co.  1  Ilannay,  N.  B.  311.     1868. 

§  2.  Difference  between  amount  of  verdict  and  value, 
as  sworn  to  in  the  proofs  and  on  the  trial,  does  not  of 
itself  establish  fraud.  Williams  v.  Phoenix  Ins.  Co.  61 
Me.  67.  18f;9.  linger  v.  People's  Ins.  Co.  4  Daly,  96. 
1871.  Gerhauser  v.  Mercantile  Ins.  Co.  7  Nev.  174. 
1871.  Rockford  Ins.  Co.  v.  Nelson,  75  111.  548.  1874. 
Israel  v.  Teutonia  Ins.  Co.  28  La.  Ann.  689.  1876. 
Schulter  v.  Merchants'  Mut.  Ins.  Co.  62  Mo.  236.  1876. 
Dogge  V.  Northwestern  Nat.  Ins.  Co.  49  Wis.  501.     1880. 

§  3.  To  constitute  fraud  and  false  swearing  a  state- 
ment must  be  willfully  made  in  respect  to  a  material  mat- 
ter and  with  intent  to  deceive  the  insurer.  Gerhauser  v. 
N.  B.  &  Mercantile  Ins.  Co.  7  Nev.  174.  1871.  s.  r. 
Huchberger  V.  Merchants' Ins.  Co.  4  Biss.  265.  1868.  Id. 
v.  Home  Ins.  Co.  5  Id.  106.  1870.  Jones  v.  Mechanics' 
Fire  Ins.  Co.  7  Vroom,  N.  J.  L  R.  29.  1872.  Planters' 
Mut.  Ins.  Co.  V.  Deford,  38  Md.  382.  1873.  Parker  v. 
Amazon  Ins.  Co.  34  Wis.  363.  1874.  Little  v.  Phoenix 
Ins.  Co.  123  Mass.  380.     1877.    Gibbs  v.  Continental  Ins. 


FRAUD  AND  FALSE  SWEARING. 


125 


Co.  13  Hun,  611.     1878.    Titus  v.  Glen'a  Falls  Ins.  Co. 
81  N.  Y.  410.     1880. 

§  4.  Defense  was  misrepresentation  in  stating  value 
to  be  $4,500 ;  false  swearing  in  stating  value  was  $3,206 ; 
the  amount  insured  was  $1,800,  upon  an  estimated  value 
at  the  time  of  the  insurance  of  $4,.500.  Jury  found  spec- 
ially, first,  that  the  actual  cash  value  of  the  goods  at  the 
time  of  the  insurance  was  $1,000,  and  that  the  extent  of 
the  loss  amounted  to  $1,100.  Held^  that  upon  these  facts 
defendant  was  entitled  to  succeed  and  plaintiff  nonsuited. 
Newton  v.  Gore  District  Mut.  Fire  Ins.  Co.  33  Up.  Can. 
Q.  B.  92.     1872. 

§  5.  Under  the  charge  of  fraud  and  false  swearing 
accused  cannot  excuse  himself  for  including  in  his  sworn 
account  of  the  loss,  property  which  had  been  removed  by 
him  from  the  premises  before  the  fire,  upon  an  alleged 
statement  made  by  the  company's  agent,  to  "  put  into  the 
proofs  all  the  plaintiff  had  ;  that  there  was  a  deduction  to 
be  made  by  the  company  anyway ;"  the  agent  not  know- 
ing of  the  removal  of  the  goods.  Hanover  Ins.  Co.  v. 
Mannasson,  29  Mich.  316.     1874. 

§  0.  There  can  be  no  designed  deception  in  proofs  of 
loss  when  company's  agent  is  fully  advised  of  the  facts. 
Nor  can  an  incorrect  statement  which  cannot,  and  does 
not,  mislead,  be  construed  as  fraud  or  an  attempt  at  fraud. 
Rohrbach  v.  ^tna  Ins.  Co.  02  N.  Y.  613.     1875. 

§  7.  When  agent  knows  facts,  an  incorrect  statement 
in  proofs  cannot  be  construed  as  "  fraud  and  false  swear- 
ing." Maher  v.  Ilibernia  Ins.  Co.  67  N.  Y.  283.  1876. 
s.  p.  Young  V.  Hartford  Ins.  Co.  45  Iowa,  377.    1877. 

§  8.  When  the  assured  swears  in  his  proofs  that  the 
value  of  the  property  insured  was  $1,000,  knowing  at  the 
time  that  it  was  materially  less  than  such  sum,  actually 
believing  his  loss  to  be  at  least  $600,  for  the  purpose  of 
inducing  a  speedy  settlement  and  to  prevent  controversy, 
it  constitutes  fraud  or  attempt  at  fraud,  causing  forfeiture 
of  the  policy.  Sleeper  v.  N.  II.  F.  Ins.  Co.  56^.  H.  401. 
1876.       , 


I 


120 


FRAUD  AND  FALSE  SWEARING. 


if. 


§  0.  When  assured  had  claimed  that  property  de- 
stroyed was  worth  $2,000,  and  the  evidence  upon  the 
trial  convinced  the  court  that  the  real  value,  when  new, 
was  not  more  than  $1,000,  and  that,  at  the  time  of  the 
fire,  did  not  exceed  $500 — Held,  that,  notwithstanding  a 
verdict  had  been  given  once  l)efore  in  favor  of  the  plaintiflF, 
it  must  be  set  aside.  McLeod  v.  Citizens'  Ins.  Co.  1  Rus- 
sel  &  G.  N.  S.  21.     1879. 

§  10.  If  assured  includes  in  sworn  statement  of  loss 
or  proofs,  articles  not  covered  by  the  insurance,  but  which 
is  done  in  good  faith  under  his  mistaken  idea  as  to  liabil- 
ity of  the  company,  it  does  not  constitute  fraud  and  false 
swearing.  Farmers'  Ins.  Co.  v.  Gargett,  9  Ins.  L.  J.  108. 
1879.     Mich. 

§  11.  Jury  found  special  verdict  that  loss  was  "over- 
estimated, but  not  with  intention  of  fraud."  There  was 
evidence  of  a  co-plaintiff  implicating  assured  in  the  de- 
struction of  the  property,  and  as  having  intentionally 
made  a  false  and  fraudulent  claim.  The  verdict  was  for 
$400.  Claim  had  been  made  for  $5G5.  Held,  the  verdict 
must  be  set  aside.  Longley  v.  Northern  Ins.  Co.  3  Rus- 
sel&C.  516.     1879. 

§  12.  The  insertion  in  proofs  by  assured,  in  good 
faitli,  with  knowledge  of  the  company,  of  articles  of  prop- 
erty belonging  to  other  members  of  his  family,  and  not  cov- 
ered  by  the  insurance,  does  not  constitute  fraud.  Farm- 
ers' Mut.  Ins.  Co.  V.  Gargett,  42  Mich.  289.     1879. 

§  13.  To  sustain  defense  of  fraud  and  false  swearing 
in  relation  to  title,  it  is  necessary  to  show  that  the  assured 
had  not  an  absolute  title  at  the  time  of  the  loss;  that  he 
knowingly,  falsely  and  fraudulently  assei'ted,  at  the  time 
of  making  a  settlement,  and  for  the  purpose  of  inducing 
the  defendant  to  make  the  same,  that  he  had  a  perfect 
title;  that  the  defendant,  relying  upon  such  false  assertion 
of  title,  was,  in  fact,  induced  to  make  the  settlement  alleged 
to  have  been  made,  and  that  defendant  would  not  have 
made  such  settlement  if  such  false  reports  had  not  been 
made.    Stache  v.  St.  Paul  Fire  Ins.  Co.  49  Wis.  89.    1880. 


FOREIGN  COMPANY. 


127 


§  14.  Fraud  cannot  be  inferred  from  a  discrepancy  in 
statements  as  to  value  in  application  and  proofs.  Helb- 
ing  V.  Svea  Ins.  Co.  54  Cal.  156.     1880. 

§  15.  The  fact  that  assured,  in  bis  proofs,  stated  that 
his  damages  amounted  to  $1,017  64,  and  appraisers  esti- 
mated same  at  $694,  is  not  conclusive  evidence  of  fraud. 
The  question,  in  such  a  case,  is  properly  left  to  the  jury. 
Dolau  V.  ^tna  Ins.  Co  22  Hun,  396.     1880. 


See  Entirety  and  Divisibility  of  Policy,  §  1,  6. 
ing  and  Practice,  8.    Waiver,  1. 


Evidence,  10.     Plead- 


FOREIGN    COMPANY. 


§  1.  Under  L.  1849,  ch.  178,  as  amended  by  2  L. 
18')7,  ch.  548,  agent  of  foreign  company,  in  any  city  or 
incorporated  village,  except  New  York,  must  give  bond 
for  accounting  and  payment  of  two  per  cent,  upon  the 
amount  of  premiums  annually  received,  to  representative 
of  fire  department.  Fire  Department  of  Troy  v.  Bacon,  2 
Abb.  Ct.  App.  Dec.  127.     1867. 

§  2.  The  deposit  of  secuiities  made  by  a  foreign  in- 
surance company,  is  applicable  only  for  the  security  of 
policy-holders.  General  creditors  of  the  company  cannot 
share  in  such  deposit.  He  .^tna  Ins.  Co.  17  Grant  Ch. 
160.     1870. 

§  3.  When,  in  distribution  of  securities  or  deposit 
made  by  a  foreign  insurance  company,  the  assets  prove  to 
be  deficient,  the  costs  are  added  to  the  claims,  and  are 
proved  and  paid  as  part  of  it.  Re  ^tna  Ins.  Co.  17 
Grant  Ch.  160.     1870. 

§  4.  When  party  holds  himself  out  as  agent  of  a  for- 
eign company,  and  forwards  an  application  to  a  broker  in 
Boston,  who  obtains  policy  from  a  company  in  New  York, 


i-V, 


128 


FOREIGN  COMPANY. 


and  delivers  it  to  the  former,  who  delivers  it  to  the  assured 
and  receives  a  note  for  the  premium,  Ileld^  that  the  trans- 
action was  an  indirect  carrying  on  of  insurance  business 
contrary  to  statute,  and  that  such  note  ^ould  not  be  col- 
lected. Jones  V.  Taylor,  2d  Pugsley,  N.  B.  391 ;  and  see 
Id.  103. 

§  5.  Under  the  Act  of  March  26,  1868,  creating  the 
office  of  insurance  commissioner  for  the  State  of  California, 
such  officer  may  require  an  insolvent  company  to  repair 
its  capital,  without  revoking  its  certificate.  Palache  v. 
Pacific  Ins.  Co.  42  Cal.  418.     1871. 

§  6.  In  an  action  against  a  foreign  insurance  com- 
pany it  is  not  necessary  to  aver  that  it  has  complied 
with  statute  governing  its  admission  to  the  State  and 
authority  to  do  business.  Germania  Ins.  Co.  v.  Currau, 
8  Kans.  9.     1871. 

§  7.  Section  5,  Act  Feb.  13, 1863  (111.),  providing  in 
substance  that  foreign  insurance  companies  should  pay  two 
per  cent,  on  premiums  received  in  Chicago  to  the  city 
treasury,  was  repealed  by  section  30,  Act  March  10,  1809, 
and  that  on  account  of  such  repeal  the  city  lost  its  right 
to  the  percentage  accrued  at  time  of  passage  of  repealing 
act,  but  not  enforced.  That  the  court  could  not  take 
judicial  notice  of  the  existence  of  a  fire  department  in 
Chicago  to  bring  the  case  within  a  proviso  of  the  repeal- 
ing act.  Van  Inwagen  v.  City  of  Chicago,  61  111.  31. 
1871. 

§  8.  Under  Constitution  of  the  State  (La.),  Act  118, 
an  insurance  company  is  not  obliged  to  pay  more  than 
one  license  fee.  Merchants'  Mut.  Ins.  Co.  v.  Blandin,  24 
La.  Ann.  112.     1872. 

§  0.  An  insurance  company  which  has  not  complied 
with  the  statute  governing  its  admission  to  the  State,  has 
no  right  to  ask  any  relief  or  require  any  official  action  in 
its  favor  within  such  State.  People  v.  Com.  of  Ins.  25 
Mich.  321.     1872. 

§  10.  A  policy  of  insurance  delivered  by  a  broker 
within  the  State,  who  icceives  premium  therefor,  of  a 


FOREIGN  COMPANY. 


129 


foreign  company  which  has  not  complied  with  statute 
governing  its  admission  to  State,  cannot  be  enforced  in 
courts  of  such  State.  Franklin  Ins.  Co.  v.  Louisville 
Packet  Co.  9  Bush  (Ky.),  590.     1873. 

§  11.  The  funds  and  securities  deposited  by  a  foreign 
insurance  company  with  the  State  Treasurer  is  not  liable 
to  attachment  when  the  company  ceases  to  do  business 
within  the  State  and  has  satisfied  all  the  claims  of  its 
citizens;  such  funds  must  be  returned  to  the  company 
and  cannot  be  attached  in  an  action  brought  by  a  foreign 
creditor.     Kollo  v.  Andes  Ins.  Co.  23  Grat.  509.     1873. 

§  12.  Funds  and  securities  deposited  by  a  foreign 
insurance  company  with  a  specified  officer  of  tnis  State  are 
not  attachable  both  on  account  of  the  tenure  of  the  hold- 
ing and  of  the  official  character  of  the  holder.  A  lien 
may  be  acquired  on  such  a  fund,  but  no  priority.  The 
law  under  which  such  securities  are  deposited  is  equiva- 
lent to  a  statutory  mortgage  for  the  benefit  of  all  the 
citizens  of  the  State.  In  such  a  case  the  rule  is  that  the 
creditors  share  pro  rata  and  neither  can  require  any 
priority  over  the  others.  Peunebaker  v.  Tomlinson,  1 
Cooper,  ch.  Ill,  594.     1873. 

§  13.  A  foreign  corporation  must  comply  with  a 
statute  prescribing  the  conditions  upon  which  it  will 
have  authority  to  transact  business  within  the  State. 
Farmers'  Ins.  Co.  v.  Harrah,  47  Ind.  236.  1874.  s.  p. 
Doyle  V.  Continental  Ins.  Co.  6  Ins.  L.  J.  177.  1876. 
U.  S.  Sup. 

§  14.  Under  the  Indiana  statute  (3  Ind.  Stat.  315)  a 
foreign  company  cannot  insist  upon  certificate  of  nearest 
officer.    Aurora  Fire  Ins.  Co.  v.  Johnson,  46  Ind.  315.    1874. 

§  15.  Statute  must  be  strictly  followed  to  obtain 
jurisdiction  over  foreign  insurance  companies.  Hartford 
Fire  Ins.  Co.  v.  Owen,  30  Mich.  441.     1874. 

§  16.  The  city  of  Norfolk  has  power  to  impose  a 
license  tax  upon  foreign  insurance  companies  doing  busi- 

VoL.  IT.— 9 


,  ,\% 


130 


FOREIGN  COMPANY. 


I 


ness  within  the  limits  of  that  city.     Humphreys  v.  City 
of  Norfolk,  25  Grat.  97.     1874. 

§  17.  The  lien  upon  notes  deposited  with  the  State 
officer  as  a  "  security  "  for  risks  taken  by  citizens  of  this 
State  may  be  enforced  by  an  assignee  who  resides  with- 
out the  State.  It  is  the  risk  that  secures  the  lien.  If 
that  be  taken  by  a  citizen  it  is  a  matter  of  no  consequence 
whether  the  citizens  retain  the  claim  after  it  becomes 
fixed  by  the  fire  or  has  assigned  it.  Pennebaker  v.  Tom- 
linson,  1  Cooper,  ch.  Ill,  598.     1874. 

§  18.  A  contract  of  insurance  made  in  Pennsylvania 
•on  property  situated  in  New  Jersey,  which  would  be  void 
under  the  laws  of  the  former  State,  is  valid  and  will  be 
enforced  in  New  Jersey.  Columbia  Fire  Ins.  Co.  v.  Kin- 
yon,  8  Vroom,  N.  J.  L.  R.  33.     1874. 

§  19.  An  insurance  company  organized  as  a  corpora- 
tion under  laws  of  one  State,  and  having  an  agency  by 
which  it  conducts  its  business  in  another  State,  is  not  en- 
gaged "  in  commerce  between  the  States,"  within  meaning 
of  U.  S.  Constitution.  Farmers'  Ins.  Co.  v.  Ilarrah,  47 
Ind.  236.     1874. 

§  20.  A  foreign  corporation  being  a  creature  of  lotfH 
law,  must  dwell  in  place  of  its  creation.  It  It  •  no 
absolute  right  to  recognition  in  other  Sta  with- 
out their  assent,  it  follows  that  such  assent  i.iy  be 
f  ranted  on  such  condlaons  as  may  be  imposed  by  statut 
iamb  V.  Lamb,  6  Biss.  420.  1875.  s.  p.  Hartford  Ius<. 
Co.  V.  State,  9  Kans.  210.  1872.  Home  Ins.  Co.  v. 
Davis,  29  Mich.  238.  1874.  City  Leavenworth  v.  Booth, 
15  Kans.  627.  1875.  Walker  v.  City  of  Springfield,  94 
lU.  364.     1880. 

§  21.  A  statute  prohibiting  removal  of  suits  into 
IT.  S.  court  having  been  decreed  unconstitutional,  one  of 
its  provisions  requiring  Secretary  of  State  in  such  case  to 
revoke  license  is  no  longer  operative,  and  lie  may  at  the 
instance  of  a  company  be  restrained  by  injunction. 
Hartford  Fire  Ins.  Co.  v.  Doyle,  6  Biss.  461.     1875. 


FOREIGN  COMPANY. 


181 


§  22.  A  statute  which  requires  a  foreign  insurance 
company,  as  a  condition  precedent  to  its  right  to  transact 
and  carry  on  business  within  thei  State,  to  waive  all  claim 
or  right  of  removal  of  actions  against  it  into  the  United 
States  court,  is  unconstitutional  and  void.  Railway  Pas- 
senger Assurance  Co.  v.  Pierce,  27  Ohio,  155.  1875. 
Contra,  Home  Ins.  Co.  v.  Davis,  29  Mich.  238.     1874. 

§  23.  Comp.  L.  §  1,683  (Mich.)  governing  insurance 
by  agents  of  foreign  corporation,  applies  to  operations 
within  the  State  and  against  the  representatives  of  foreign 
incorporated  and  unincorporated  interests.  It  does  not 
assume  to  forbid  the  making  of  contracts  of  insurance  in 
another  State,  nor  does  it  assume  to  invalidate  such  agree- 
ments. A  company  sued  upon  a  policy  issued  in  another 
State,  and  which  has  not  complied  with  the  statute,  can- 
not avail  itself  of  a  defense  founded  upon  such  non-com- 
pliance, upon  the  ground  of  want  of  authority  to  make  its 
contract.  Clay  Ins.  Co.  v.  Huron  Manuf.  Co.  31  Mich. 
346.     1875. 

§  24.  The  common  council  of  St.  Paul,  Minnesota, 
has  no  authority  to  require  an  agent  of  an  insurance  com- 
pany to  pay  for  a  license  to  transact  insurance  business  in 
that  city.     Moss  v.  City  of  St.  Paul,  21  Minn.  421.     1875. 

§  25.  When  a  foreign  fire  insurance  company  has, 
imder  the  statute  (L.  1853,  p.  915;  L.  1862,  p.  65),  ap- 
pointed an  attorney  upon  whom  process  of  law  can  be 
served,  service  of  a  summons  upon  sucli  attorney  as  pre- 
scribed by  the  Code  of  Civil  Procedure,  is  sufficient  to 
give  ihe  State  courts  jurisdiction.  Gibbs  v.  Queen  Ins. 
Co.  G3N.  Y.  114.     1875. 

§  26.  A  foreign  insurance  company  which  has  com- 
plied with  the  statute  in  regard  to  its  admission  into  the 
Staio,  and  has  appointed  an  agent  to  accept  process,  be- 
comes, as  to  all  contracts  with  citizens  of  such  State,  domi- 
ciled there,  and  in  controversies  with  other  citizens,  grow- 
ing out  of  policies  of  insurance,  must  sue  and  be  sued  in 
the  State  courts,  and  does  not  come  within  the  terms  of 
the  Act  of  Congress  relating  to  the  removal  of  cases  to  the 


132 


FOBEION  COMPANY. 


i   5;ti 


United  States  court.     Continental  Ins.  Co.  v.  Kasey,  27 
Grat.  216.    1876. 

§  27.  The  fact  that  statute  under  which  an  agree- 
ment is  required  not  to  lemove  causes  into  the  United 
States  court  is  unconstitutional  and  void,  does  not  pre- 
vent State  from  revoking  its  authority  and  license  to  a  for- 
eign company  to  transact  business  within  the  State.  Doyle 
V.  Continental  Ins.  Co.  6  Ins.  L.  J.  177.    1876.    U.  S.  Sup. 

§  28.  Authority  in  a  municipal  charter  to  license  and 
tax  insurance  companies  for  a  specific  purpose  in  connec- 
tion with  fire  department,  cannot  be  extended  to  create  a 
fund  for  benefit  of  department  generally.  City  of  Alton 
V.  iEtna  Fire  Ins.  Co.  82  111.  45.     1876. 

§  29.  Although  company  may  not  have  complied 
with  laws  of  a  certain  State  authorizing  it  to  do  business 
therein,  such  fact  does  not  make  its  policy  void,  having 
been  issued  in  another  State  upon  an  application  for- 
warded by  mail.    Lamb  v.  Bowser,  7  Biss.  '6X5.     1878. 

§  30.  Superintendent  of  New  York  Insurance  De- 
partment cannot  voluntarily  transfer  his  trust  created  by 
deposits  made  with  him  under  the  statute  for  benefit  of 
policy  holders.  Ruggles  v.  Chapman,  59  N.  Y.  163.  1874. 
64  N.  Y.  557.     1876. 

§  31.  The  State  Act  of  1875  which  authorizes  the 
treasurer  department  to  collect  from  foreign  insurance 
companies  two  dollars  and  fifty  cents  upon  each  one  hun- 
dred dollars  of  premiums,  "  which  shall  be  in  lieu  of  all 
other  taxes,"  prevents  the  city  of  Memphis  from  imposing 
any  further  tax.  City  of  Memphis  v.  Ins.  Cos.  5  Ins.  L.  J. 
175.     1876.     Tenn. 

§  32.  Jurisdiction  in  garnishee  proceedings  is  obtained 
over  foreign  companies  only  by  a  strict  compliance  with 
the  statute.  Hebel  v.  Amazon  Ins.  Co.  5  Ins.  L.  J.  599. 
1876.    Mich. 

§  33.  To  acquire  jurisdiction  ov3r  a  foreign  insurance 
company,  service  of  process  must  be  made  upon  the  per- 


the 


FOREIGN  COMPANY. 


133 


son  or  agent  designated  for  that  purpose  under  the  statute. 
Liblong  V.  Kansas  Fire  Ins.  Co.  82  Pa.  413.     1876. 

§  34.  It  is  not  competent  for  a  legislature  to  declare 
that  the  citizens  of  the  State  shall  not  be  allowed  to  make 
such  contracts  as  tbey  please  out  of  the  State  for  the  in- 
surance of  their  property.  Lamb  v.  Bowser,  7  Biss.  315. 
1876. 

§  35.  The  non-compliance  by  a  foreign  insurance  com- 
pany with  statute  governing  its  admission  to  State,  does 
not  prevent  a  recovery  upon  a  note  given  by  a  citizen  of 
such  State  as  subscription  to  capital  stock.  Bartlett  v. 
Chouteau  Ins.  Co.  18  Kans.  369.     1877. 

§  36.  In  Iowa  service  of  process  may  be  made  upon 
an  agent  authorized  to  solicit  risks  and  forward  them  to 
the  company.  Farmers'  Ins.  Co.  v.  Highsmith,  44  Iowa, 
330.  187t).  And  neglect  of  such  agent  to  forward  papers 
to  company  will  not  induce  court  to  vacate  a  judgment  en- 
tered upon  default.  Niagara  Ins.  Co.  v.  Rodecker,  47 
Iowa,  162.     1877. 

§  37.  Under  the  Iowa  statute,  service  of  process  upon 
company  admitted  to  the  State  may  be  made  upon  any  of 
its  agents  in  the  State.  Company  will  not  be  reliever' 
from  a  judgment  obtained  against  it  by  default,  process 
having  been  served  on  one  of  such  accents,  in  absence  of 
evidence  that  the  latter  used  due  diligence  to  notify  the 
company  or  its  general  agent.  Niagara  Ins.  Co.  v.  Ro- 
decker, 7  Ins.  L.  J.  824.     1877.     Iowa. 

§  38.  A  foreign  insurance  company  cannot  be  allowed 
to  continue  business  after  legal  proceedings  have  been  had 
in  its  domicile  for  purpose  oi  closing  the  affairs  of  the  com- 
pany, and  it  is  without  regard  tO  the  possible  result  of 
such  proceedings  upon  the  e>lvency  of  the  company. 
Douglas  V.  Atlantic  Mutual  Life  Ins.  Co.  25  Grant  Cn. 
379.     1878. 

§  39.  An  insurance  company  created  by  Act  of  Con- 
gress is  a  foreign  corporation  witnin  the  meaning  of  stat- 


sjiA 


d 


134 


FOREIGN  COMPANY. 


,, 


ute  of  Indiana.     (I  R.  S.  1876,  p.  373.)     Daly  v.  National 
Life  Ins.  Co.  64  Ind.  1.     1878. 

§  40.  Under  the  Indiana  statute  (1  R.  S.  1876,  p. 
594)  a  contjpany  has  until  the  last  day  of  the  months  of 
January  and  July  in  each  year  to  file  certificate  of  author- 
ity, and  may  transact  business  until  close  of  such  months. 
American  Ins.  Co.  v.  Pettijohn,  62  Ind.  382.     1878. 

§  41.  State  Treasurer  is  not  required  to  give  up 
securities  deposited  with  him  by  foreign  insurance  com- 
pany until  full  compliance  is  shown  with  Act  of  March  23d, 
1874.  State  v.  Richmond  Fire  Association,  67  Mo.  496. 
1878. 

§  42.  A  company  having  under  the  statute  appointed 
an  attorney  for  the  purpose  of  receiving  service  of  legal 
process,  such  service  to  confer  jurisdiction,  can  be  made 
upon  such  person  only.  Baile  v.  Equitable  Fire  Ins.  Co. 
68  Mo.  617.    1878. 

§  43.  The  right  of  a  company  organized  under  a  spe- 
cial charter  to  transact  business  in  Chicago  with  a  capital 
less  than  $150,000,  is  not  aflfected  by  section  6  of  ch.  73 
Rev.  Stat.  1874.  People  v.  Empire  Fire  Ins.  Co.  88  111. 
309.     1878. 

§  44.  In  a  controversy  between  various  parties  as  to 
their  interest  in  the  fund  deposited  under  the  statute  with 
the  treasurer  cf  the  State  of  Mississippi,  Held,  that  the  ob- 
ject of  the  statute  was  to  give  foreign  insurance  companies 
as  far  as  possible  the  privileges  coupled  with  the  liabilities 
of  companies  chartered  by  that  State.  That  the  deposit 
was  intended  only  for  those  who  obtained  their  policies 
through  agents  appointed  and  doing  business  in  the  State, 
under  the  provisions  of  the  statute.  That  no  assignment 
or  transfer  of  the  fund  deposito<l  could  be  made  so  as  to 
defeat  claims  upon  it  for  satisfaction  of  losses  or  unearned 
premiums  upon  policies  issued  by  such  agents  as  provided 
by  statute.  Nor  could  powers  of  such  agents  be  worked 
80  as  to  defeat  such  claims.  After  all  such  demands  are 
satisfied  the  fund  should  be  returned  to  the  depositor  or 


'L.. 


FOREIGN  COMPANY. 


135 


its  assignee.     Firemen's  Ins.  Co.  v.  Hemingway,  8  Ins.  L. 
J.  520.     1878.     U.  S.  Circuit,  Miss. 

§  45.  State  court  has  jurisdiction  over  a  foreign  com- 
pany when  process  is  served  as  prescribed  by  the  statute 
in  an  action  brought  upon  a  policy  issued  an'^  made  within 
the  State  to  a  non-resident.  Osborne  v.  Shawmut  Ins.  Co. 
51  Vt.  278.     1878. 

§  46.  The  act  of  1869  (Ga.)  prescribing  conditions 
under  which  foreign  insurance  companies  may  be  author- 
ized to  transact  business  in  that  State  is  inoperative  to 
sustain  the  impression  of  a  tax  upon  a  company  when  such 
company  is  from  a  State  in  which  no  Georgia  company  is 
engaged  in  business.  Goldsmith  v.  Home  Ins.  Co.  62  Ga. 
379.     1879. 

§  47.  The  act  of  1869  of  Georgia  in  substance  pro- 
vided that  if  any  other  State  should  require  Georgia  com- 
panies or  their  agents  to  pay  taxes,  penalties,  cfec,  greater 
than  the  amounts  required  by  the  Laws  of  Georgia,  that 
the  companies  of  such  other  States  should  be  required  to 
pay  a  like  amount  to  the  comptroller-general.  Held,  that 
the  comptroller-general  could  not  under  this  act  impose  a 
tax  for  purpose  of  raising  revenue ;  that  the  object  of  the  act 
was  to  prescribe  the  terms  upon  which  foreign  companies 
miglit  do  business.  Home  Ins.  Co.  v.  Goldsmith,  8  Ins.  L. 
J.  811.     1879.     Ga. 


§  48.     State  constitution 
insurance  interests  should  bo 
which  it  operates."     When 
poses  a  tax  it  is  not  essential 
to  all  insurance  companies, 
constitute  different  classes. 
Ins.  L.  J.  909.     1879.    111. 


provided  that  the  tax  upon 
"  uniform  as  to  the  class  upon 
a  municipal  corporation  ira- 
that.  it  should  apply  equally 
Home  and  foreign  companies 
Iluijrhes  v.  Citv  of  Cairo,  8 


49.  A  prer^ium  note  executed  within  this  State 
(Ind.)  to  a  foreign  insurance  company  which  has  not  com- 
plied with  the  statute,  is  not  aV)solutely  void  but  the  rem- 
edy is  suspended  until  the  company  complies  with  the  law. 
American  Ins.  Co.  v.  Wellman,  69  Ind.  413.     1879. 


Wa  8  I 

n  s 

JiHisflE    I 


'!?* 


13a 


FOREIGN  COMPANY, 


■i 


§  50.  Statute,  sec.  1,974  R  S.  which  provides  that  if  a 
judgment  shall  remuin  unpaid  60  days  after  its  rendition, 
that  the  commissioner  should  revoke  the  authority  of 
foreign  insurance  company  to  do  business  within  the  State, 
does  not  apply  when  company  has  taken  an  appeal  in  good 
faith  from  such  judgment.  State  v.  Spooner,  47  Wis.  438. 
1879. 

§  51.  An  insurance  company  which  has  deposited 
stocks  and  securities  with  the  treasurer  under  Gen.  Stat.  R. 
I.  ch.  143,  sec.  18,  has  no  absolute  right  to  receive  and  col- 
lect the  interest  and  dividends  accruing  thereon  but  can 
only  receive  and  collect  them  by  permission  of  the  treas- 
urer. Moies  V.  Mechanical  Mutual  Ins.  Co.  12  R.  I.  259. 
1879. 

§  52.  Under  the  Wisconsin  statute  a  broker,  who 
solicits  insurance  for  companies  not  authorized  to  transact 
business  in  that  State,  is  liable  to  a  penalty  "  not  exceed- 
ing five  hundred  dollars,  nor  less  than  fifty  dollars  for 
•each  offense  "  and  the  fact  that  solicitation  is  made  in  be- 
half of  a  number  of  companies  at  same  time  and  in  same 
conversation  does  not  relieve  the  broker  from  being  sub- 
jected to  as  many  penalties  in  one  suit  as  there  are  com- 
panies. State  of  Wisconsin  v.  Farmer,  9  Ins.  L.  J.  516. 
1880.  Wis.  And  see  State  v.  Beazley,  60  Mo.  220. 
1875. 

§  53.  A  non-resident  may  sue  company  in  Maryland 
State  courts,  after  it  has  withdrawn  from  the  State,  by 
service  of  process  on  the  insurance  commissioner  as  pro- 
vided by  statute.  Ben.  Franklin  Ins.  Co.  v.  Gillett,  9  Ins. 
L.  J.  774.     1880.     Md. 

§  64.  Suit  was  for  a  penalty  of  $10  imposed  on  com- 
pany's agents  by  city  of  Mobile  for  violation  of  ordinance 
requiring  license  for  transacting  business  in  that  city. 
Tbe  appellants  were  aj^ents  of  the  Columbus  Insurance 
Company  of  Mississippi.  The  laws  of  that  State  require 
foreign  companies  to  pay  a  license  tax  of  $1,000  to  be  re- 
ceived in  lieu  of  all  other  taxes  or  licenses,  which  are  pro- 


FOREIGN  COMPANY. 


137 


hibited  to  be  exacted  by  any  municipal  authority.  The 
statute  of  /.labama  requires  foreign  companies  to  pay  a 
license  of  $100,  and  it  is  further  provided  "  Whenever  the 
existing  or  future  laws  of  any  State  of  the  United  States 
shall  require  of  insurance  companies  incorporated  by  laws 
of  this  State,  or  of  the  agents  thereof,  any  deposit  of 
securities  in  such  State  for  the  protection  of  policy  hold- 
ers or  otherwise,  greater  than  the  amount  required  for 
similar  purposes  from  similar  companies  of  other  States 
by  the  then  existing  laws  of  this  State,  then  in  every  such 
case,  all  companies  of  such  States,  establishing  or  having 
heretofore  establishe.d  an  agency  or  agencies  in  this  State, 
are  required  to  make  the  same  deposit  for  a  like  purpose 
with  the  treasurer  of  this  State,  for  taxes,  fines,  penalties, 
license  fees,  or  otherwise,  an  amount  equal  to  the  amount 
of  such  charges  and  payments  imposed  by  the  laws  of 
such  State  upon  the  companies  of  this  State,  and  the 
agents  thereof."  Company  accordingly  deposited  $1,000 
with  the  treasurer  of  Alabama,  and  claimed  that  by  above 
statute  they  were  exempted  from  lir  bility  to  pay  license 
tax  imposed.  Held,  that  the  statute  quoted  above  was 
unconstitutional  (1)  because  it  violated  clauses  of  consti- 
tution having  reference  to  uniformity  of  taxation  required 
in  assessing  propertv  and  (2)  that  in  eflfect  it  authorized 
Mississippi  to  fix  by  law  the  amount  which  Alabama 
should  demand  of  foreign  companies  and  that  thus  it  vio- 
lated principle  of  constitutional  law  that  "  the  power  con- 
ferred on  the  legislature  to  make  laws  cannot  be  delegated 
to  any  other  body  or  authority."  Statute  being  void 
agents  were  liable  to  tax  imposed.  Clark  v.  Mobile,  10 
Ins.  L.  J.  357.     1880.     Ala. 

§  55.  A  premium  note  cannot  be  held  to  be  void  on 
the  ground  that  the  c.  mpany  has  not  complied  with  the 
statute  when  such  non-compliance  is  entirely  owing  to  the 
failure  of  the  State  officer  to  furnish  the  company  s  agent 


the  statute. 


with  a  certified  copy  of  a  paper  required  by 
American  Ins.  Co.  v.  Butler,  70  Ind.  1.     1880. 

§  56.    Company  cannot  plead  non-compliance  with 
statute  governing  its  admission  to  the  State  as  a  defense 


138 


GARNISHMENT  OB  TRUSTEE  PROCESS. 


111 


ii  II 


ill 


J 


to  an  action  upon  its  contract  or  policy.  Swan  v.  Water- 
town  Ins.  Co.  10  Ins.  L.  J.  392.  1881.  Pa.  s.p.  Daniels 
V.  Citizens' Ins.  Co.  11  Eep.  420.  1881.  U.  S.  Circuit, 
Ind.  Watertown  Fire  Ins  Co.  v.  Simons,  9  Ins.  L.  J.  597. 
1880.     Pa. 

See  Agent,  §  78,  95.    Mutual  Company,  19,  93,  104,  114,  152,  158.     Other 
Insurance,  48.    Parol  Contract,  22.    Removal  of  Causes  to  U.  8.  Court,  1. 


GARNISHMENT  OR  TRUSTEE  PROCESS. 

§  1.  An  unadjusted  and  unliquidated  claim  for  a  loss 
is  subject  to  attachment.  Girard  Fire  Ins.  Co.  v.  Field,  3 
Grant  Cas.  329.     1862. 

§  2.  Service  of  process  in  garnishee  proceedings  must 
be  made  at  the  usual  place  of  business  or  residence  of 
agent.  Lehigh  Valley  Ins.  Co.  v.  Fuller,  6  Ins.  L.  J.  486. 
1877.    Pa. 

§  3.  A  claim  under  policy  of  insurance  is  not  liable 
to  garnishment  so  long  as  the  company  has  the  option  of 
paying  for  the  property  lost  or  replacing  it.  Elliott  v. 
Preston,  42  Mich.  511.  1880.  Godfrey  v.  Macomber,  128 
Mass.  188.  1880.  Mai-tz  v.  Detroit  Ins.  Co.  28  Mich. 
201.     1873. 

See  Foreign  Company,  §  11,  12,  32.     Mutual  Company,  159. 


GOODS  IN  TRUST  OR  ON   COMMISSION. 

§  1.  Policy  insured  "  goods  in  trust  or  on  commission 
for  which  they,  the  assured,  are  responsible."  Assured 
had  purchased  the  teas  insured  from  an  importer  who 
indorsed  to  them  the  warrant  in  blank.  Before  the  fire 
occurred  assured  had  resold  the  teas  to  customers  and 
had  been  paid  for  the  same ;  the  assured  held,  however,  the 
warrants  on  behalf  of  such  customers  but  merely  for  the 
convenience  of  paying,  if  required,  expenses  necessary  to 
clear  the  teas  and  payable  by  such  customers.  Held, 
that  as  the  property  in  the  teas  had  passed  out  of  the  as- 
sured and  that  the  teas  remained  at  purchasers'  risk  and 
not  at  the  risk  of  the  assured,  who  no  longer  had  any 
interest  in  them,  are  responsible  to  the  purchasers  in 
respect  to  them  in  case  of  the  fire,  and  that  such  teas 
were  therefore  not  covered,  although  semhU  it  might 
have  been  otherwise  if  the  insurance  had  extended  to 
goods  in  trust  or  on  commission  generally,  and  instead 
of  being  expressly  limited  to  goods  in  trust  or  on  com- 
mission for  which  the  assured  were  responsible.  North 
British  Ins.  Co.  v.  Moftatt,  L.  R.  7  C.  P.  25.     1871. 

§  2.  By  "goods  held  in  trust"  are  meant  goods  with 
which  assured  is  intrusted  in  ordinary  sense  of  the  word. 
Hough  V.  People's  Ins.  Co.  36  Md.  398.     1872. 

§  3.  A  warehouseman  having  complied  with  his 
agreement  in  procuring  insurance  on  goods  stored  with 
him  is  not  liable  to  the  owner  for  the  value  of  a  portion 
held  to  be  not  covered  by  such  insurance,  owing  to  act  of 
the  owner  in  terminating  the  agreement  to  insure  as  to 
such  portion  prior  to  the  fire.  Cole  v.  Favorite,  69  111. 
457.     1873. 

§  4.  A  trustee  having  agreed  to  insure,  the  selection 
of  the  company  being  left  to  him,  does  not  guarantee 
their  continued  solvency.  Gettins  v.  Scudder,  71  111.  86. 
1873. 


140 


GOODS  IN  TRUST  OR  ON  COMMISSION. 


§  5.  Assignee  of  insolvent  debtor  had  used  due  dili- 
gence in  making  sales  and  the  bulk  of  the  goods  had 
been  disposed  of.  There  was  a  remnant  unsold  which  he 
stored  for  the  purpose  of  disposing  of  to  best  advantage 
and  without  delay.  Held^  that,  in  absence  of  testimony 
to  contrary,  assignee  could  not  be  charged  with  negligence 
in  omitting  to  insure  a  parcel  of  goods  of  that  character 
held  under  such  circumstances  so  as  to  render  him  liable. 
Clark  V.  Craig,  29  Mich.  398.     1874. 

§  6.  When  assured  holds  policy  "on  merchandise 
his  own  or  held  by  him  in  trust  or  on  commission," 
he  is  entitled  to  the  whole  amount  of  insurance  from  the 
compacy,  but  as  to  the  sum  so  received  in  excess  of  what 
is  reqa*  red  to  satisfy  his  individual  claim,  he  is  trustee  for 
the  actual  owners.  He  has  same  lien  upon  the  insurance 
money  for  advances  as  he  had  upon  the  goods.  Johnson 
V.  Campbell,  120  Mass.  449.  1876.  Hough  v.  People's 
Ins.  Co.  36  Md.  398.  1872.  Home  Ins.  v.  Bait.  Ware- 
house Co.  3  Otto,  527.  1876.  Robbins  v.  Firemen's 
Fund  Ins.  Co.  16  Blatch.  122.  1879.  Reitenbach  v. 
Johnson,  129  Mass.  316.     1880. 

§  7.  An  insurance  of  goods  consigned  which  fails 
through  neglect  of  consignee  or  factor,  renders  the  latter 
liable  to  the  consignor.  Gordon  v.  Wright,  29  La.  Ann. 
812.     1877. 

§  8.  Where  a  plaintiff  bases  right  of  recovery  in  an 
action  for  money  had  and  received  upon  the  ground 
that  defendant  who  was  bailee  of  plaintiff's  piano,  effected 
insurance  on  it,  and  piano  having  been  destroyed  by  fire, 
afterward  collected  the  money  from  the  insurer,  which  he 
failed  to  pay  over,  plaintiff  must  not  only  show  that  the 
particular  piano  was  covered  by  the  insurance,  but  also 
that  the  defendant  received  money  for  its  loss.  If  prop- 
erty was  described  in  policy  as  "  goods  held  in  trust,"  de- 
fendant may  show  that  the  goods  referred  to  were  those 
which  he  was  bound  to  insure  and  other  than  the  piano. 
So  defendant  may  show  that  proofs  of  loss  did  not  include 
the  piano,  and  that  nothing,  in   fact,  was  paid  for  it. 


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GOODS  IN  TRUST  OR  ON  COMMISSION. 


141 


Parol  evidence  that  the  insurance  was  eflfected  on  the 
goods  he  was  under  obligation  to  insure,  is  not  objection- 
able on  ground  that  it  varies  or  contradicts  the  written 
contract;  such  evidence  gives  application  to  general 
words  of  the  policy.  The  rule  excluding  parol  evidence 
applies  only  to  the  parties  to  a  written  instrument. 
Snow  V.  Stoutz,  7  Ins.  L.  J.  483.     1877.     Ala. 

§  9.  Assured  in  policy  covering  goods  left  for  sale  or 
rent,  and  described  as  "  his  own  or  held  by  him  in  trust," 
holds  the  money  collected  as  trustee,  and  cannot  insist 
upon  its  being  first  applied  in  satisfaction  of  his  individ- 
ual claim.  The  insurance  money  belongs  to  each  owner 
equally,  and  if  less  than  the  actual  loss,  must  be  divided. 
Knowledge  and  satisfaction  of  the  obtaining  of  the 
policy  not  essential  to  sustain  claim  to  share  in  the  pro- 


ceeds of 

1878. 


the  insurance.    Snow   v.   Carr,   61   Ala.  363. 


§  10.  Whether  goods  are  owned  by  the  assured  or 
held  by  him  for  sale  on  commission  is  a  question  for  de- 
termination of  jury  under  proper  instructions.  Planters* 
Mut.  Ins.  Co.  V.  Engle,  52  Md.  468.     1879. 


See  Contribution,  §  5,  16. 
Covered,  1,  24. 


Interest  iu  Policy,  5,  19.     Wiiat  Property  is 


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ILLEGALITY  OF  CONTRACT. 

§  1.  A  contract  of  insurance  made  on  Sunday  is  void, 
there  being  no  evidence  of  a  subsequent  ratification. 
Heller  v.  Crawford,  37  Ind.  279.     1871. 

§  2.  A  policy  which  covers  future  material  of  pro- 
duction of  the  assured  in  the  course  of  his  business,  trade 
or  calling,  is  a  valid  contract  of  indemnity,  and  not  a 
wager  policy.  Sawyer  v.  Dodge  County  Mutual  Ins.  Co. 
37  Wis.  503.     1875. 

§  3.  When  assured  is  engaged  in  an  unlawful  busi- 
ness without  a  license  required  by  the  statute  at  the  time 
of  the  issue  and  his  acceptance  of  the  policy,  it  never 
attaches;  the  whole  policy  is  void  notwithstanding  it  is 
divided  into  several  items,  one  of  which  only  relates  to 
the  illegal  business.  Johnson  v.  Union  Ins.  Co.  127 
Mass.  555.    1879. 

§  4.  Policy  covered  stock  of  drugs,  medicines,  liquors, 
&c.  Company  claimed  that  the  contract  and  claim  under 
it  embraced  liquors  kept  for  sale  contrary  to  law,  and  that 
by  reason  of  such  illegality  policy  was  void.  There  was 
evidence  tending  to  show  that  the  assured  illegally  sold 
liquors,  including  those  not  used  in  compoundmg  medi- 
cines. Held,  that  if  such  illegal  traffic  was  the  business 
of  the  assured,  and  his  legal  traffic,  and  transaction  with 
other  property  a  mere  cover,  ostensibly  carried  on  for  the 

fmrpose  of  enabling  him  to  secrete  and  disguise  his  un- 
awful  acts,  the  policy  would  be  void ;  but  if  he  carried  on 
business  using  alcoholic  liquors  legitimately  in  his  drug 
trade,  and  occasionally  sold  them  in  violation  of  law,  if 
no  illegal  design  entered  into  the  making  of  the  contract 
in  its  inception,  it  is  so  far  collateral  to  the  illegal  acts, 
that  latter  cannot  operate  to  render  the  insurance  void. 
That  the  question  should  be  determined  by  the  jury  with 
^receding  instructions.  Carrigan  v.  Lycoming  Ins.  Co.  10 
ns.  L.  J.  606.     1881. 


I 


See  Foreign  Company,  §  4, 10,  29,  34,  49. 


INCREASE  OF  RISK. 

§  1.  Ceasing  to  occupy  the  premises  insured  does  not 
as  a  matter  of  law  increase  the  risk.  Foy  v.  ^tna  Ins. 
Co.  3  Allen,  N.  B.  29.     1854. 

§  2.  When  two  adjoining  stores  are  thrown  into  one 
by  making  archways  througn  the  walls  which  remain 
open  and  are  not  provided  with  doors,  such  alteration 
affords  a  strong  presumption  that  the  risk  is  thereby  in- 
creased, and  if  witnesses  called  on  the  part  of  the  defend- 
ant are  distinct  and  unanimous  that  such  an  alteration 
tends  to  produce  such  effect,  and  if  no  testimony  is  ad- 
duced on  this  point  by  the  plaintiff,  a  verdict  in  his  favor 
will  be  set  aside.  Denkla  v.  Ins.  Co.  6  Phil.  Rep.  233. 
1867. 

§  3.  Policy  was  to  be  void  by  "  any  increase  of  risk." 
Assured  boarded  up  the  windows  and  voluntarily  permit- 
ted the  building  to  remain  unoccupied  for  several  months 
before  the  fire.  Trial  judge  refused  to  charge  the  jury 
"  that  if  under  this  policy  plaintiff  might  have  recovered 
even  for  the  consequences  of  the  acts  of  vicious  or  bad 
tenants,  yet  he  cannot  recover  if  the  building  was  wholly 
unoccupied  for  so  long  a  time  as  to  render  the  risk  greater 
than  it  would  have  been  with  tenants  of  ordinary  care 
and  habits."  Ileld^  such  refusal  error ;  that  defendant  was 
entitled  to  the  charge  as  above  requested.  Luce  v.  Dor- 
chester Mut.  Ins.  Co.  110  Mass.  361.     1872. 

§  4.  The  mere  change  of  occupants  does  not  increase 
the  risk.     Planters'  Ins.  Co.  v.  Sorrels,  1  Baxt.  352.    1872. 

§  5.  Policy  provided  that,  if  during  the  insurance  the 
risk  should  be  increased  by  the  erection  of  buildings  or 
by  the  use  or  occupation  of  neighboring  premises  or  other- 
wise, it  should  be  the  duty  of  the  insured  to  notify  the 
company.  The  company  reserves  the  right  to  terminate 
this  insurance  at  any  time  by  giving  notice  to  that  ette'it, 
4&C.    The  defense  was  that  a  smoke-house,  increasing  the 


it 


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144 


INCREASE  OF  RISK. 


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IS 


risk,  was  erected  on  the  neighboring  premises,  of  which 
the  assured  failed  to  give  notice.  Jleld,  that  the  plaintiff 
had  no  knowledge  of,  and  could  not,  by  the  lively  exer- 
cise of  proper  diligence,  ascertain  such  increased  risk;  the 
condition  fairly  construed  did  not  oblige  hira,  at  his  peril, 
to  ascertain  the  facts  and  notify  the  company  of  their  ex- 
istence. If  the  company  acquired  knowledge  of  the  in- 
crease of  the  risk  from  any  source  without  exercising  its 
option  to  cancel  the  policy,  it  would  be  liable  for  the  Toss. 
Eclipse  Ins.  Co.  v.  Schowed,  2  Cin.  Supr.  Ct.  474.     1873. 

§  6.  Increase  of  risk  is  a  question  of  fact  to  be  deter- 
mined by  a  jury.  Lattomus  v.  Farmers'  Mut.  Ins.  Co.  3 
Houston  (Del.),  404.     1873. 

§  7.  Company  is  bound  upon  notice  of  increase  of 
risk,  to  exercise  its  option  of  declaring  policy  void  and 
cancelling  it ;  if  not  done,  company  waives  forfeiture  on 
that  ground.  Lattomus  v.  Farmers  Mut.  Ins.  Co.  3  Hous- 
ton (Del.),  404.     1873. 

§  8.  Policy  insured  plaintiff's  stock  of  fire- works  and 
merchandise.  The  classification  upon  the  policy  specified 
fire-works  as  specially  hazardous.  Policy  provided  that 
whenever  any  article  subject  to  legal  restriction  should  be 
kept  in  quantity  or  manner  different  from  that  allowed  by 
law,  unless  the  use  or  keeping  was  specially  provided  for 
in  the  policy,  it  should  be  void.  An  ordinance  of  the 
city  of  New  York  prohibited  "  works  of  brilliant  colored 
fires"  from  being  stored  within  the  city  limits,  but  with 
this  exception  allowed  fire-works  to  be  kept  in  limited 
quantity  for  limited  time.  Plaintiff  kept  a  quantity  of 
"  signal  lights,"  classed  as  "  works  of  brilliant  colored 
fires,"  and  evidence  tended  to  show  that  the  fire  originated 
among  them.  Held,  error  to  direct  verdict  for  plaintiff: 
that  if  defendant  was  not  entitled  to  a  nonsuit,  it  was  en- 
titled to  have  the  question  of  increase  of  risk  submitted 
to  jury.  Jones  v.  Firemen's  Fund  Ins.  Co.  51  N.  Y.  318. 
1873. 

§  0.  The  clause  authorizing  company,  in  case  of  in- 
crease of  risk,  to  tenninate  the  insurance  upon  notice  and 


IM 


INCREASE  OF  BISK. 


145 


return  of  unearned  premium,  was  intended  to  provide  for 
increase  of  risk  by  acts  of  third  persons,  and  does  not 
affect  clause  against  increase  of  risk  by  means  within  con- 
trol of  assured.  Williams  v.  People's  Fire  Ins.  Co.  57  N. 
Y.  274.     1874. 

§  10.  If  the  condition  against  increase  of  risk  has 
been  broken,  there  can  be  no  recovery,  though  the  fire 
may  have  been  occasioned  by  some  wholly  independent 
cause.  Williams  v.  People's  Fire  Ins.  Co.  57  N.  Y.  274. 
1874. 

§  11.  Whether  there  is  a  change  or  increase  of  risk 
consequent  upon  removal  of  a  building  150  feet  from  the 
spot  which  it  occupied  when  it  was  insured  is  a  question 
of  fact  to  be  determined  by  the  jury.  Griswold  v.  Ameri- 
can Central  Ins.  Co.  70  Mo.  654.     1874. 

§  12.  "Increase  of  risk"  is  a  question  of  fact,  and 
must  be  submitted  to  jury.  Williams  v.  People's  Fire 
Ins.  Co.  57  N.  Y.  274.     1874. 

§  13.  A  condition  providing  that  policy  should  be 
void  "  in  case  of  any  change  by  which  degree  of  risk  is  in- 
creased" without  written  consent,  has  reference  only  to  a 
change  produced  by  act  of  the  assured ;  such  a  change  as 
company  could  consent  to,  and  not  to  one  occasioned  by 
accident,  or  a  cause  over  which  the  assured  had  no  con- 
trol.   Breuuer  v.  Ins.  Co.  51  Cal.  101.     1875. 

§  14.  Process  of  reducing  liquors  by  the  mixing  of 
water  and  the  making  of  cocktails,  does  not,  as  matter  of 
law,  increase  the  risk.  Insurance  was  upon  stock  of  gro- 
ceries. Bayly  v.  Lond.  &  Lane.  Ins.  Co.  4  Ins.  L.  J.  503. 
1875.     U.S.  Circuit.     La. 

§  15.  Company  cannot  avail  itself  of  defense  of  in- 
crease of  risk,  where,  after  knowledge  of  the  facts,  it  per- 
mits its  policy  to  stand  without  undertaking  to  cancel. 
Fireman's  Fire  Ins.  Cc.  v.  Sholom,  80  III.  558.  1875. 
8.  p.  Kemoval  of  goods.  Williamsburg  City  Ins.  Co.  v. 
Gary,  83  111.  453.     1876. 

Vol.  n.— 10 


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i 


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1    I 

1 .11 


146 


INCREASE  OF  RISK. 


f,  '     ' 


§  16.  When  policy  provides  that  any  change  within 
control  of  the  assured,  material  to  the  risk,  shall  void  it, 
the  change  must  be  one  which  affects  the  condition  of  the 
property  itself,  and  made  by  the  act,  authority,  Consent, 
procurement  or  cognizance  of  the  assured.  The  mere  va- 
cation of  the  house  by  the  assured  or  the  occupants  is  not 
such  a  change.  Georgia  Home  Ins.  Co.  v.  Kinnier,  28 
Grat.  88.     1876. 

§  17.  Lighting  a  building  with  gasoline  cannot  be 
construed  as  using  the  building  for  a  more  hazardous 
business.  Mutual  Fire  Ins.  Co.  v.  Coatsville  Shoe  Factory, 
80  Pa.  407.     1876. 

§  18.  Policy  provided  that  if  the  risk  should  be  in- 
creased in  any  manner,  that  it  should  be  void.  Assured 
built  an  oven  upon  the  premises,  which  was  constructed 
and  used  with  care.  The  agent  knew  of  the  existence  of 
the  oven,  and  had  power,  under  the  terms  of  the  policy,  to 
cancel  it  in  case  of  any  increase  of  risk,  which  he  did  not 
do.  Held,  that  there  was  no  violation  of  the  condition. 
Naughter  v.  Ottawa  Ins.  Co.  43  Up.  Can.  Q.  B.  12 1.    1878. 

§  19.  The  condition  against  occupancy  or  use  so  as 
to  "  increase  the  risk,"  only  prohibits  a  new  and  different 
use  from  that  to  which  property  is  applied  when  policy  is 
issued,  by  which  the  risk  is  increased.  The  continuation 
of  an  existing  use  is  no  violation  of  such  condition.  Whit- 
ney V.  Black  River  Ins.  Co.  72  N.  Y.  117.  1878.  Affi'g 
9  Hun,  37. 

§  20.  While,  in  a  case  involving  a  question  of  in- 
crease of  risk,  the  testimony  of  insurance  experts  may  be 
properly  received,  it  is  not  conclusive,  even  where  uncon- 
tradicted, when  a  state  of  facts  is  presented  upon  which 
the  jury  after  receiving  all  the  light  which  can  be  obtained 
from  it,  are  still  called  upon  to  decide  whether  the  theories 
of  the  experts  are  not  rendered  inapplicable  by  special  cir- 
cumstances proved.  Cornish  v.  Farm  Buildings  Fire  Ins. 
Co.  74  N.  Y.  295.     1878.     Affi'g  10  Hun,  406. 

§  21.  The  erection  of  an  adjoining  building  is  an  in- 
crease of  the  risk,  the  legal  effect  of  which  cannot  be 


INCREASE  OF  RISE. 


147 


avoided  by  the  setting  up  of  some  real  or  fancied  lessening 
of  the  risk  by  removal  of  other  buildings  against  the  in- 
creased risk  by  the  erection  of  the  new  building.  Potts- 
villa  Mutual  Fire  Ins.  Co.  v.  Horan,  89  Pa.  438.     1879. 

§  22.  If  risk  be  increased  against  a  provision  which 
declares  such  increase  shall  annul  the  policy,  the  company 
is  absolved  from  the  contract,  such  clause  is  operative 
though  the  fire  was  not  caused  by  the  increased  risk. 
Hence  if  assured  knowingly  increases  the  risk,  or  permits 
it  to  be  done,  by  using  part  of  the  house  insured  as  a  tin 
shop,  he  cannot  recover  though  no  work  had  been  done  in 
the  shop  for  a  few  days  prior  to  the  fire.  Manufacturers' 
Ins.  Co.  V.  Kunkle,  8  Ins.  L.  J.  50.     1879.     Pa. 

§  23.  Upon  an  issue  as  to  concealment  and  increase 
of  risk,  evidence  that  if  company  had  krown  tue  fact  it 
would  have  increased  the  premium,  is  not  evidence  of  an 
increase  of  the  risk.  The  question  in  such  a  case  is  not 
how  the  parties  might  regard  it,  but  whether  or  not  the 
fact  concealed  did  increase  the  hazard.  Virginia  F.  and 
M.  Ins.  Co.  V.  Kloeber,  9  Ins.  L.  J.  354.     1879.     Va. 

§  24.  Neglect  to  repair  steam  chest  of  a  pump  is  not 
an  increase  of  the  risk,  within  meaning  of  these  terms  in  a 
policy ;  it  is  merely  such  negligence  as  is  covered  by  the 
insurance.  Albion  Lead  Works  v.  Williamsburg  City 
Ins.  Co.  9  Ins.  L.  J.  435.     1880.     U.  S.  Circuit,  Mass. 

§  25.  Policy  contained  condition  that  if  risk  should  be 
increased  either  "  internally  or  externally,"  without  notice 
and  consent,  that  it  should  be  void.  It  also  contained  ex- 
press conditions  as  to  vacancy  and  occupancy.  Company 
offered  to  prove  upon  the  trial  that  the  house  being  unoc- 
cupied increased  the  risk,  and  the  evidence  was  excluded. 
Held^  no  error ;  that  the  general  condition  could  not  be  ap- 
plied to  a  case  specially  provided  for  by  terms  of  the  policy. 
That  the  words,  "  risk  increased  either  internally  or  exter- 
nally," do  not  refer  to  an  increase  of  risk  by  removal  from 
the  house,  but  an  increase  of  risk  by  internal  or  external 
changes  in  the  house  itself,  or  its  exposure,  which  mani- 
festly increase  the  risk  so  that  it  is  not  the  «ame  risk  in- 


f  'i     V. 


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143 


INCREASE  OF  BISK. 


fc,'|-!> 


snred.      Hermann  v.  Merchants'  Ins.  Co.  81  N.  Y.  184. 
1880. 

§  26.  The  usual  provision  in  policy  for  a  renewal 
does  not  have  the  effect  to  continue  policy  in  force  during 
term  for  which  it  was  issued,  when  there  has  been  an  in 
crease  of  risk  Daniels  v.  Equitable  Ins.  Co.  10  Ins.  L.  J. 
417.     1881.     Conn. 

§  27.  Propertv  insured  was  described  in  the  policy 
as  follows :  "  Furniture,  fixtures  and  tools  used  by  the  as- 
sured in  his  business  as  renovator  of  furniture,  clothing 
and  carpets,  and  on  the  improvements  to  the  building  put 
in  by  him."  There  was  this  clause  inserted:  "Assured 
has  permission  to  use  naphtha  in  his  business,  but  fire  or 
lights  are  not  permitted  in  the  building,  except  a  small 
stove  in  office."  At  that  time  there  was  no  other  stove  in 
the  building.  Policy  issued  July  7,  1877,  for  one  year. 
About  January  Ist  following,  a  large  stove  was  placed  in  a 
room  used  for  a  drying  room,  and  was  thereafter  used  in 
connection  with  hot  water  pipes  for  warming  the  naphtha 
in  tanks  in  the  basement.  Fire  occurred  in  April,  caused 
by  an  explosion  of  gas.  Upon  the  trial  uncontradicted 
evidence  was  given  that  the  risk  was  increased.  Verdict 
for  plaintiff.  Held^  that  the  verdict  was  contrary  to  law 
and  evidence,  and  new  trial  granted.  That  it  was  no  an- 
swer to  say  that  company  insured  business  carried  on  with 
naphtha,  and  that  therefore  assured  had  right  to  use  ordi- 
nary means  to  carry  on  that  business.  The  conditions  and 
manner  of  use  were  defined  and  limited  by  agreement,  nnd 
there  was  no  right  to  use  means  which  involved  a  viola- 
tion of  his  agreement.  Insurance  is  rendered  void  without 
regard  to  cause  of  the  fire.  Daniels  v.  Equitable  Ins.  Co. 
10  Ins.  L.  J.  417.     1881.    Conn. 

§  28.  If  there  is  no  express  prohibition  against  use  of 
a  threshing  machine  in  close  proximity  to  a  barn  insured, 
although  fire  is  caused  by  its  explosion,  the  question  is,  at 
most,  one  of  increase  of  risk,  and  tiiat  is  properly  left  to 
the  jury.  Farmers'  Mutual  Fire  Ins.  Co.  v.  Moyer,  10  Ins. 
L.  J.  514.     1881.    Pa. 

flee  Alteration,  §  2.    Concealment,  9.     Evidence,  44,  86.    Lighting,  8,  4. 


184. 


INSOLVENCY. 


149 


Other  Insurance,  31.  Overvaluation,  9.  Pleading  and  Practice,  27.  Ques- 
tions for  Court  and  Jury,  13,  17.  Renewal,  3,  12.  Repairs,  2.  Risk,  13. 
Storing  and  Keeping,  4.  Use  and  Occupation,  2,  5,  15,  17,  19.  Vacant  or 
Unoccupied,  6,  12,  15,  31,  40.    Warranty  and  Representation,  72,  88. 


INSOLVENCY. 

§  1.  Mortgages  were  executed  by  an  officer  and  stock- 
holder, in  exchange  for  stock ;  they  contained  a  provision 
that  they  might  be  paid  in  stock  of  the  company,  were  not 
recorded,  but  were  advertised  as  assets  of  the  company. 
After  losses  were  incurred  company  became  insolvent  and 
the  mortgages  were  surrendered  and  canceled,  on  return 
and  cancellation  of  the  stock  certificates.  Ileldj  that  the 
transaction  was  a  fraud  on  the  policy  holders,  and  that  as 
to  them  the  mortgagor  was  estopped  from  denying  the 
validity  of  the  mortgages.  Burnham  v.  N.  W.  Ins.  Co.  36 
Iowa,  632.     1873. 

§  2.  Directors  of  an  insolvent  company  are  not  re- 
sponsible for  mere  errors  of  judgment  or  want  of  pru- 
dence in  conducting  or  closing  up  its  business.  Lyman 
V.  Bonney,  118  Mass.  222.     1875. 

See  Mutual  Company,  §  9,  28.  29,  32,  66,  78,  79,  84,  92,  120,  183,  136. 
Pleading  and  Practice,  7.     Re-Insurance,  15. 


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§  1.  Assured  obtained  policy  as  owner  of  building 
in  his  possession,  on  land  subject  to  a  lease,  the  title  to 
which,  prior  to  the  insurance  was  in  "W.  from  whom  the 
assured  had  received  a  unrecorded  assignment  of  the 
lease.  Before  the  policy  was  obtained  W.  had  assigned 
the  lease  to  another  party  and  this  assignment  was  re- 
corded. ITeld,  that  by  such  recording,  the  title  was  in 
the  latter  assignee  without  entry  and  that  the  insured  had 
no  insurable  mterest.  Crockford  v.  Equitable  Ins.  Co.  5 
Allen,  N.  B.  651.     1863. 

§  2.  A  stock  of  goods  covered  by  policy  was  sold  to 
M.  who  gave  his  notes  therefor,  indorsed  by  L.  with 
an  agreement  that  the  proceeds  of  the  sale  of  the  goods 
shomd  be  paid  over  to  L.  and  be  applied  in  payment  of 
the  notes.  Policy  was  assigned  to  L.  by  consent  of  the 
company,  all  parties  having  knowledge  of  the  facts.  Held, 
that  L.  had  an  insurable  interest  in  the  goods.  Davies  v. 
Home  Ins.  Co.  3  Grant  Err.  &  App.  269.  1866.  Revers- 
ing 24th  Q.  B.  364. 

§  3.  Land  uj^on  which  house  insured  stood  was  leased 
to  plaintiff's  husband  who  had  died  in  1860.  Plaintiff 
retained  possession  from  that  time  and  paid  the  ground 
rent.  No  administration  was  taken  out  on  the  husband's 
estate,  nor  did  it  appear  that  any  claim  was  made  against 
the  plaintiff  in  behalf  of  any  of  the  next  of  kin.  Held, 
that  the  plaintiff  had  an  insurable  interest  either  upon 
the  ground  of  a  presumption  that  the  house  belonged  to 
the  plaintiff,  or  as  executrix  de  son  tort,  or  as  a  widow 
under  the  statute  of  distribution.  Lingley  v.  Queen  Ins. 
Co.  1  Hannay,  N.  B.  280.     1868. 

§  4.  An  equitable  interest  is  an  insurable  interest. 
If  insured  is  in  possession  under  a  contract  for  purchase 
and  has  paid  part  of  the  consideration,  he  has  an  insura- 
ble interest.  Tuckerman  v.  Home  Ins.  Co.  9  R.  I.  414. 
1870. 


INSURABLE  INTEREST. 


161 


§  5.  When  a  deed  is  shown  to  have  been  intended 
as  a  mortgage  only  it  does  not  deprive  the  assured  of  an 
insurable  interest.  Kelly  v.  Liv.,  Lond.  &  Globe  Ins.  Co. 
2  Hannay,  266.     1871. 

§  6.  Owner  of  property,  although  having  parted  with 
possession  under  an  executory  contract  of  sale,  retains  an 
insurable  interest.  Wood  v.  North  Western  Ins.  Co.  46 
N.y.  421.     1871. 

§  7.  On  May  26,  1868,  owner  of  property  gave  a 
mortgage  to  Little  and  Stanton  to  secure  six  notes.  On 
Jan.  81,  1870,  Little  and  Stanton  assigned  the  mortgage 
and  indorsed  the  notes  to  the  plaintiflf.  Policy  was  issued 
July  5, 1870,  by  which  defendants  insured  "Little  and 
Stanton,  mortgagees^''  loss  payable  to  plaintiff.  Policy 
contained  usual  condition  requiring  interest  to  be  stated 
in  policy  if  not  sole  and  absolute  ownership,  <fec.  Held^ 
that  Little  and  Stanton  retained  and  had  an  insurable  in- 
terest on  account  of  their  liability  as  indorsers  of  the 
notes  and  right  to  have  mortgage  reassigned  to  them  upon 
payment  of  the  same,  and  that  their  interest  was  suffi- 
ciently stated.  Williams  v.  Roger  Williams'  Ins.  Co.  107 
Mass.  377.    1871. 

§  8.  House  and  lot  had  been  occupied  by  assured  and 
husband  as  a  homestead;  he  abandoned  her,  makin^  a 
verbal  gift  to  her  of  the  property,  where  she  continued  to 
reside  with  her  family.  Building  was  erected  partially 
with  her  own  earnings.  Held^  that  she  had  an  insurable 
interest.     Ilockford  Ins.  Co.  v.  Nelson,  65  111.  415.     1872. 

§  9.  When  company  (in  order  to  remove  the  effect  of 
a  mistake  in  the  name  of  the  assured)  makes  an  indorse- 
ment upon  the  policy  making  loss  payable  to  third  par- 
ties, in  an  action  brought  by  the  latter,  it  will  not  be  per- 
mitted to  defeat  it  by  setting  up  want  of  an  insurable  in- 
terest. Mathews  v.  Queen  City  Ins.  Co.  2  Cin.  Supr.  Ct. 
109.    1872. 

§  10.  Where  lessee  of  a  farm  is  bound  by  terms  of  a 
written  lease  not  to  sell  the  hay  and  other  produce  with- 


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152 


INSURABLE  INTEREST. 


out  written  consent  of  the  lessor,  without  such  written 
consent  the  former  cannot  convey  any  interest  in  the  hay 
and  produce  to  another  which  will  be  insurable.  Heald 
V.  Builders'  Ins.  Co.  Ill  Mass.  38.     1872. 

§11.  The  insurable  interest  of  a  lessee  bound  to  re- 
place, extends  to  the  full  value  of  the  property,  and  such 
is  the  measure  of  damages.  Imperial  Fire  Ins.  Co.  v.  Mur- 
ray, 73  Pa.  13.     1873. 

§  12.  State  being  in  possession,  even  without  title, 
has  a  right  to  insure  in  its  own  name  for  benefit  of  the  real 
owners,  and  to  maintain  an  action  as  trustees  of  an  express 
trust.  People  v.  Li  v.,  Lond.  &  Globe  Ins.  Co.  2  T.  <fe  C. 
(N.  Y.  Sup.)  268.     1873. 

§  13.  When  a  sub-lessee  of  a  plantation  is  shown  to 
have  an  absolute  interest  in  certain  proportion  of  cotton 
such  interest  cannot  be  destroyed  or  effected  by  a  chattel 
mortgage  executed  by  the  lessee  to  a  third  party,  that  the 
interest  of  the  sub-lessee  acquired  by  agreement  or  lease 
could  not  be  encumbered  in  any  way  by  the  lessee. 
Georgia  Home  Ins.  Co.  v.  Jones,  49  Miss.  80.     1873. 

§  14.  A  liability  as  common  carrier  is  sufficient  to 
confer  an  insurable  interest,  under  a  policy  insuring  a 
railroad  company  upon  "  any  property  for  which  they  may 
be  liable."  And  the  right  to  recover  against  the  insur- 
ance company  is  not  affected  by  the  fact  that  the  railroad 
company  is  indemnified  by  other  roads  for  the  loss  of  the 
property  insured.  Commonwealth  v.  Hide  and  Leather 
Ins.  Co.  112  Mass.  136.     1873. 

§  15.  Assured  held  policy  which  stated  that  prop- 
erty was  held  by  him  "  under  contract  of  purchase." 
Upon  the  trial  defendant  offered  to  prove  that  plaintiff, 
although  he  bid  off  property  at  receiver's  sale  in  his  own 
name,  in  fact  bought  it  for  another.  Testimony  was  re- 
jected. Held^  no  error,  that  by  the  sale  and  conveyance, 
if  plaintiff  did  so  purchase,  he  had  the  legal  title  as 
against  the  whole  world,  save  perhaps  party  for  whom  he 
acted  and  his  creditors,  and  as  the  owner  of  the  legal 


INSURABLE  INTEREST. 


153 


title  he  had  an  insurable  interest.     Bicknell  v.  Lancaster 
City  Ins.  Co.  58  N.  Y.  677.     1874. 

§  16.  It  is  not  necessary  to  have  an  absolute  vested 
ownership  or  property  in  that  which  is  insured ;  it  is 
sufficient  to  have  a  right  in  the  thing  insured  of  such  a 
nature  that  the  party  insuring  may  have  benefit  from  its 
preservation  and  prejudice  from  its  destruction.  Cum- 
berland Bone  Co.  v.  Andes  Ins.  Co.  64  Me.  466.     1874. 

§  17.  Property  insured  consisted  of  railroad  ties  cut 
under  a  contract  with  a  railroad  construction  company 
and  piled  along  the  road.  The  ties  were  not  fully  ac- 
cepted by  the  construction  company  so  as  to  render  it  ro- 
sponsible  to  the  assured  for  payment  until  they  had  been 
severally  examined  as  they  were  laid  in  place  upon  the 
roadbed.  Held^  that  assured's  insurable  interest  contin- 
ued until  the  ties  were  accepted  by  the  construction  com- 
pany in  such  manner  as  would  bind  it  to  pay  for  them. 
Chandler  v.  St.  Paul's  Ins.  Co.  21  Minn.  85.     1874. 

§  18.  An  administrator  with  the  will  annexed  has 
an  insurable  interest  in  the  trust  property.  Babson  v. 
Thomaston  Ins.  Co.  4  Ins.  L.  J.  50.  1874.  U.  S.  Circuit, 
Me. 

§  19.  An  owner  of  land  agreed  by  parol  to  convey 
it  to  another  in  fee  upon  the  verbal  promise  of  the  person 
to  whom  the  conveyance  was  to  be  made,  on  receiving  it 
to  give  back  a  conveyance  to  the  grantor,  of  a  life  estate 
in  the  same  premises.  The  agreement  on  part  of  owner 
was  executed  by  a  conveyance.  The  grantee  neglected 
or  omitted  to  convoy  the  life  estate  according  to  the 
agreement,  and  the  grantor  remained  in  possession.     Heldy 

frantor  had  an  insumble  interest.     Redfield  v.  Holland 
Purchase  Ins.  Co.  50  N.  Y.  354.     1874. 

§  20.  Plaintiff  leased  property  for  term  of  five  years 
from  April  1,  1801,  giving  lessee  privilege  of  purchase 
and  to  whom  he  gave  up  possession.  With  knowledge 
and  assent  of  all  parties,  about  same  time,  company  issued 
policy  which  in  terms  insured  the  plaintiff,  but  the  loss,  if 


154 


INSURABLE  INTEREST. 


any,  was  made  payable  to  the  leasee  to  indemnify  him  for 
improvements.  Policy  was  intended  for  benefit  of  both. 
April  6th  fire  occuiTed.  Notice  and  proofs  were  given  by 
plaintiff,  who  previous  to  commencement  of  action  took 
an  assignment  of  all  claim  of  the  lessee  under  the  policy. 
Held,  plaintiff  had  an  insurable  interest,  and  was  entitled 
to  recover  full  amount  of  loss.  Hand  v.  Williamsburg 
City  Fire  Ins.  Co.  57  K  Y.  41.     1874. 

§  21.  A  void  tax  sale  does  not  affect  an  insurable  in- 
terest nor  a  representation  as  to  ownership.  Cheek  v. 
Columbia  Fire  Ins.  Co.  4  Ins.  L.  J.  99.     1874.     Tenn. 


§  22.  Owner  of  property  sold  on  execution  retains 
an  insurable  interest  so  long  as  his  right  to  redeem  has 
not  lapsed.  Cone  v.  Niagara  Fire  Ins.  Co.  60  N.  Y.  619. 
1875. 

§  23.  In  case  of  foreclosure  and  judgment  therein 
insurable  interest  of  the  assured  continues  until  the  time 
for  redemption  expires.  Mechler  v.  Phoenix  Ins.  Co.  38 
Wis.  665.     1875. 

§  24.  A  policy  obtained  by  a  part-owner  of  the 
property  insured  without  previous  authority  or  subse- 
quent ratification  by  the  other  owners  covers  only  the 
interest  of  the  party  procuring  it.  Knight  v.  Eureka 
Fire  Ins.  Co.  26  Ohio,  664.     1875. 

§  25.  Where  a  wife  by  a  written  instrument  declared 
that  she  owed  her  husband  so  much  money,  "  which 
amount  shall  be  a  lien  on  my  property,"  he  being  and 
continuing  in  possession.  Held,  sufficient  to  create  an  in- 
surable interest.  Rohrbach  v.  Germania  Fire  Ins.  Co. 
62  N.  Y.  47.     1875. 

§  26.  If  there  be  a  right  in  or  against  the  property, 
which  a  court  will  enforce,  a  right  so  closely  connected 
with  it,  and  so  much  dependent  for  value  upon  the  con- 
tinued existence  of  it  alone,  so  that  a  loss  of  the  property 
will  cause  pecuniary  damage  to  the  holder  of  the  right 
against  it,  he  has  an  insurable  interest.  Rohrbach  v. 
Geimania  Fire  Ins.  Co.  62  N.  Y.  47.     1875. 


INSURABLE  INTEREST. 


155 


§  27.  Policy  insured  W.  A.  Hardy  upon  whiskey, 
&c.,  "  their  own  or  held  by  them  in  trust,  <fec.,  on  coramis- 
Bion,  or  sold  but  not  delivered."  Property  was  actually 
owned  by  another.  Assured  was  his  general  agent  hav- 
ing custody  and  control  of  the  property,  with  full  power 
to  preserve  and  dispose  of  it  according  to  his  discretion, 
and  was  liable  to  account  for  it  and  the  proceeds  when 
sold.  Jleld,  that  assured  had  sufficient  insurable  interest 
to  entitle  him  to  be  insured  in  his  own  name.  Kline  v. 
Queen  Ins.  Co.  7  Hun,  267.  1876.  Affi'd  (without  opin- 
ion) 69  N.  Y.  614. 

§  28.  To  defeat  an  insurable  interest,  a  forfeiture 
provided  for  by  the  terms  of  a  lease  must  be  strictly  con- 
strued.    Ins.  Co.  V.  Diggs,  8  Baxt.  563.     1876. 

§  29.  Although  a  mortgage  executed  by  a  husband 
to  his  wife  during  coverture  may  be  void  at  law,  it  may 
be  valid  in  equity  if  founded  on  a  good  and  valuable  con- 
sideration. In  such  a  case  the  wife  has  an  insurable  in- 
terest to  the  extent  of  amount  due  on  the  mortgage. 
Mix  V.  Andes  Ins.  Co.  9  Hun,  397.  1876.  Rev'd  74 
N.  Y.  53  on  another  point. 

§  30.  Liability  for  tax  on  whiskey  lost  while  stored 
in  warehouse  is  sufficient  to  create  an  insurable  interest. 
Ins.  Co.  V.  Thompson,  5  Otto,  547.     1877. 

§  31.  Legal  title  was  in  the  father  of  the  assured,  the 
latter  being  in  possession,  under  an  agreement  that  prop- 
erty was  to  be  reconveyed  whenever  assured  might  wish. 
Held,  that  assured  had  an  insurable  interest.  Pettigrew 
V.  Grand  River  Ins.  Co.  28  Up.  Can.  C.  P.  70.    1877. 

§  32.  If  assured  has  paid  a  certain  amount  for  prop- 
erty insured,  receiving  a  bill  of  sale  therefor  and  delivery 
of  the  same,  he  has  an  insurable  interest  therein  to  extent, 
at  least,  of  money  paid,  though  there  may  have  been  an 
understanding  that  the  property  would  be  reconveyed,  on 
repayment  of  the  money.  Little  v.  Phosnix  Ins.  Co.  123 
Mass.  380.      1877. 

§  33.  Assured  was  a  sub-lessee  who  had  erected  build- 
ing msured,  which  it  was  conceded  became  part  of  the  real 


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INSURABLE  INTEREST. 


estate,  and,  at  the  end  of  the  lease,  would  pass  to  the  owner 
of  the  soil.  Policy  was  issued  two  years  before  expiration 
of  the  lease,  and  the  loss  occurred  within  the  term.  The 
policy  read  as  follows :  "  On  his  two  story,  <fec.,  situate  on 
leased  land."  Held^  assured  had  an  insurable  interest,  and 
that  the  clause  "  situate  on  leased  land,"  was  a  sufficient 
compliance  with  provision  of  policy  requiring  that  notice 
of  interest  should  be  truly  stated  in  the  policy  ;  that  the 
statement  implied  that  whatever  interest  assured  had,  it 
was  subject  to  terms  of  a  lease,  particulars  of  which  were 
not  called  for  by  the  policy  or  made  the  subject  of  specific 
inquiry.  Fowle  v.  Springfield  Fire  Ins.  Co.  122  Mass.  191. 
1877. 

§  34.  An  assignment  absolute  upon  its  face,  but  shown 
to  have  been  executed  and  delivered  as  a  mortgage  merely, 
and  held  as  collateral  security,  does  not  effect  such  a  sale 
and  delivery  of  the  property  insured,  or  destroy  all  inter- 
est or  liability  on  the  part  of  the  insured  therein  so  as  to 
terminate  the  insurance.  Chandler  v.  Commerce  Fire  Ins. 
Co.  88  Pa.  223.     1878. 

§  35.  An  executory  contract  of  sale  does  not  destroy 
an  insurable  interest.  People's  Ins.  Co.  v.  Straehle,  2  Cin. 
Supr.  Ct.  186.     1878. 

§  36.  Assured,  who  had  advanced  money  upon  a  ves- 
sel in  course  of  construction,  and  obtained  insurance  upon 
it  in  his  own  name,  without  ever  having  possession  of  the 
vessel  or  holding  any  bill  of  sale  or  transfer  of  it.  Held, 
that  he  had  no  insurable  interest  and  could  not  recover. 
Clark  V.  Scottish  Imperial  Ins.  Co.  2  Pugsley  <fe  B.,  N.  B. 
240.     1878. 

§  37.  Party  in  possession  of  property,  and  holding 
power  of  attorney,  from  owner  of  legal  title,  to  dispose  of 
the  same  in  consideration  of  money  advanced  by  him  to 
assist  the  latter  in  the  purchase,  has  an  insurable  interest. 
Brugger  v.  State  Invest.  Ins.  Co.  5  Sawyer,  304.     1878. 

§  3o.  It  is  not  compel;*^nt  to  write  an  insurance  where 
an  insurable  interest  is  wanting,  whether  the  facts  are 
known  to  the  company  or  not ;  the  difficulty  is  inherent 


INSURABLE  INTEREST. 


157 


Richmond  v.  Niagara  Fire  Ina.  Co.  79  N.  Y.  230. 


in  the  case,  and  is  beyond  reach  of  a  waiver.     Agricultu- 
ral Ins.  Co.  V.  Montague,  38  Mich.  548.     1878. 

§  39.  Right  in  assured  to  possession  and  use  of  the 
property  under  a  contract  of  purchase,  title  to  remain  in 
vendor  until  fully  paid  for,  confers  upon  the  former  an  in- 
surable interest.  Holbrook  v.  St.  Paul  Ins.  Co.  25  Minn. 
229.    1878. 

§  40.     Warehousemen  as  bailees  have  an  insurable  in- 
terest. 
1879. 

§  41.  The  interests  of  joint-owners  or  owners  in  com- 
mon are  distinct  for  all  purposes  of  indemnity  against  loss, 
and  therefore,  of  insurance,  as  if  they  owned  different  and 
distinct  things,  and  hence  an  insurance  effected  by  one  will 
not  serve  to  protect  the  share  or  interest  of  another.  Har- 
vey V.  Cherry,  76  N.  Y.  436.     1879. 

§  42.  No  right  of  property  in  the  thing  insured  is  re- 
quired to  sustain  an  insurable  interest ;  it  is  sufficient  if 
party  is  so  situated  as  to  be  liable  to  loss  if  it  should  be 
destroyed  by  peril  insured  against.  Harvey  v.  Cherry,  76 
N.  Y.  436.     1879. 

§  43.  Assured  had  conveyed  the  property  to  another, 
taking  back  a  deed  of  defeasance  containing  provision  for 
reconveyance.  Held,  that  he  had  an  insurable  interest. 
Walsh  V.  Philadelphia  Fire  Association,  127  Mass.  383. 
1879. 

§  44.  There  must  be  some  interest  in  property  burnt 
at  time  of  the  fire ;  otherwise  there  can  be  no  recovery. 
Monroe  v.  Southern  Mut.  Ins.  Co.  63  Ga.  669.     1879. 

§  45.  Defense  was  that  the  assured  had  no  interest  as 
owner.  Policy  covered  both  real  and  personal  property 
which  was  in  premises  of  plaintiff.  Evidence  tended  to 
prove  that  the  property  was  conveyed  by  one  Henry  J. 
David,  who  then  owned  the  same,  to  Marx  David,  who 
was  a  fictitious  person,  and  then,  that  in  the  name  of  Marx 
David  he  conveyed  same  property  to  plaintiff.  Court 
charged  jury  "  that  if  they  believed  that  Marx  David  was 


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a  myth,  or  that  there  was  no  such  real  person,  or  that  he 
never  executed  the  deed  or  bill  of  sale,  it  was  an  end  of 
plaintiff's  case,  and  they  must  find  for  defendant."  HeU^ 
error.  That  Henry  J.  David  was  bound,  even  although  he 
used  an  assumed  name.  That  the  title  was  good  as  against 
him,  and  there  being  no  evidence  of  any  other  claimant, 
plaintiff  showed  sufficient  title  to  sustain  his  action.  Da- 
vi'^  -  Williamsburg  Ins.  Co.  83  N.  Y.  265.     1880. 

^  i3.  A  party  who  has  a  mechanic's  lien  has  an  insur- 
able in*-ere.st  to  extent  of  value  of  the  buildlnp;  and  amount 
r  f  hv  "rici ;  the  facts  that  he  has  commenced  a  suit  to 
enf'.  ;o  lien  and  discontinues  it  after  tae  fire,  are  no 

defense  to  an  action  brought  by  h*m  upon  his  policy.  In- 
surance Co.  V.  Stinson,  13  Otto,  25.     1880. 

§  47.  Owner  of  property  has  an  insurable  interest  to 
the  extent  of  the  value  of  the  building  notwithstanding 
the  existence  of  a  mortgace  upon  the  property  of  a  suffi- 
cient amount  to  absorb  it.  Insurance  Co.  v.  Stinson,  13 
Otto,  25.     1880. 

§  48.  When  a  life  interest  is  insured  its  value  de- 
pends, treating  it  as  an  unqualified  life  estate  on  age  and 
expectation  of  life.  If  estate  is  qualified  by  provision 
that  party  is  to  use  and  occupy  so  long  as  he  chooses  to 
make  property  his  home,  the  interest  is  still  less  valuable. 
The  insurable  interest  of  such  a  party  is  the  value  of  the 
use  to  him.  In  case  of  a  man  sixty-five  years  of  age,  value 
of  his  life  would  be  worth,  according  to  usual  tables,  forty- 
five  per  cent,  of  the  whole  value  of  the  property.  If  right 
is  entirely  personal  and  not  alienable,  its  value  would  be 
still  less.  Per  Johnson^  J.  Farmers'  Ins.  Co.  v.  Archer, 
10  Ins.  L.  J.  370.     1881.     Ohio. 

§  49.  Both  parties  admitting  existence  of  a  parol  con- 
tract for  sale  of  land,  with  vendee  in  possession  and  part 
of  the  purchase-money  paid,  is  sufficient  to  create  an  in- 
surable interest  in  the  latter.  Farmers'  Ins.  Co.  v.  Meckes, 
10  Ins.  L.  J.  707.     1881.    Pa. 

See  Alicnntion,  §  33.  Burden  of  Proof,  1.  Damages,  15.  Evidence,  27, 
80,  75.  Mortgagor  and  Mortfrngeo,  2.  Pleading  and  Practice,  5,  18,  23. 
Title,  12.    Valued  Policy,  8.    Warranty  and  Representation,  62,  75. 


INTEREST  IN  POLICY. 


§  1.  Loss  being  made  payable  to  a  third  party  as  in- 
terest may  appear  cannot  give  such  party  greater  or  other 
rights  than  are  possessed  by  the  assured.  Home  Mut.  Ins. 
Co.  V.  Hauslein,  60  111.  521.     1871. 

§  2.  When  policy  provided  that  in  case  it  was  held 
as  collateral  security  any  claim  under  it  "  should  not  be 
payable  until  payment  of  such  portion  of  the  debt  shall 
have  been  enforced  as  can  be  collected  out  of  the  original 
security,"  and  the  company  then  to  be  liable  to  pay  such 
sum  only,  not  exceeding  sum  insured,  as  could  not  be  col- 
lected out  of  such  primary  security,  and  it  was  obtained 
by  the  owner  who  had  parted  with  possession  of  property 
under  an  executory  contract  of  sale,  the  premium  being 
paid  by  the  vendee  under  an  agreement  so  to  do.  Heldy 
that  policy  was  taken  for  benefit  of  latter,  and  was  not 
held  as  collateral  security  within  the  meaning  of  the  con- 
stitution. Wood  V.  North  Western  Ins.  Co.  46  N.  Y.  421. 
1871. 

§  3.  Where  property  insured  is  destroyed  during 
pendency  of  partition  suit,  the  money  should  be  applied 
towards  the  satisfaction  of  encumbrances  due  before  being 
divided.    Kingsbury  v.  Buckner,  70  111.  514.     1873. 

§  4.  A  tenant-incommon  who  has  obtained  insur- 
ance in  his  own  name,  paying  the  premium  himself,  is  not 
accountable  to  his  co-tenants  for  the  insurance  money  re- 
ceived in  the  absence  of  an  agreement  to  that  effect.  Mc- 
intosh V.  Ontario  Bank,  20  Grant  Ch.  24.     1873. 


§5. 


When 


the 


msurance  is  in  the  name  of  a  certain 
party  covering  his  interest  and  of  others  owning  property 
m  a  warehouse,  if  the  assured  named  settles  his  individual 
loss,  giving  a  release  without  prejudice  to  the  claims  of  the 
other  owners.  Ileld^  that  all  the  remaining  parties  inter- 
ested in  i,he  policy  and  insurance  might  unite  in  bringing 
an  action  for  the  amount  duo  them  in  their  own  names, 
Strobn  v.  Hartford  Fire  Ins.  Co.  33  Wis.  648.    1873. 


\m 


160 


INTBBEST  IN  POLICY. 


§  6.  Policy  insured  plaintiffs  specifically  on  cotton 
gin  and  press,  and  interest  on  account  of  repairs.  Issued 
Dec.  28,  1866,  for  twenty  days;  renewed  Jan.  .?,  1867, 
for  twenty  days.  Plaintiffs  were  partners.  January  15, 
1866,  they  made  an  agreement  with  one  Flurnoy  to  oper- 
ate his  plantation  for  one  year.  Plaintiffs  were  to  furnish 
supplies  and  stock ;  implements  and  stock  on  plantation 
to  remain  and  be  used ;  any  more  required  plaintiffs  to 
furnish.  Flurnoy  to  supervise  the  work  and  to  make  all 
permanent  improvements.  Crop  of  cotton  to  be  delivered 
to  plaintiffs  and  sold.  Proceeds  to  be  used  (1)  to  reim- 
burse plaintiffs  for  advances,  balance  to  he  divided  equally 
between  plaintiffs  and  Flurnoy.  At  expiration  of  one 
year  stock  and  implements  were  also  to  be  equally  divided. 
In  pursuance  of  agreement  plaintiffs  repaired  the  gin 
house  and  put  in  a  new  gin  and  press  and  mule  power. 
Cotton  was  picked  and  a  portion  sent  to  market.  While 
a  portion  remained  in  gin  house,  fire  occurred  consuming 
it  and  contents.  Date  of  fire  Jan.  18,  1867.  Policy  con- 
tained clause  to  effect  that  if  the  assured  were  not  the 
sole  and  unconditional  owners,  it  should  be  void.  Plaint- 
iffs recovered  for  loss  on  cotton  $2,812;  mule  power  as 
repairs,  $425 ;  gin  and  press,  $600.  Jfeld,  that  as  it  ap- 
peared plaintiffs  had  expended  more  than  the  whole  crop 
was  worth,  and  were  therefoie  under  the  contract  entitled 
to  entire  proceeds,  that  Flurnoy's  interest  had  ceased,  and 
plaintiffs  were  the  sole  and  unconditional  owners.  But 
that  as  to  the  gin  and  press  Flurnoy  had  an  equal  interest 
and  they  were  not  sole  owners.  That  policy  was  to  be 
treated  as  written  on  day  of  its  renewal.  That  mule 
power  was  not  part  of  the  gin  house  and  could  not 
be  considered  repairs.  Judgment  reduced  accordingly. 
Noyes  v.  Hartford  Ins.  Co.  54  N.  Y.  668.  1873.  s.  o.  3 
Ins.  L.  J.  44. 

§  7.  In  August,  1864,  defendant  purchased  one-half 
of  a  house  and  lot  and  took  deed  in  his  own  name,  the 
consideration  being  $400,  and  the  plaintiff  owning  and 
occupying  the  other  half.  By  agreement  plaintiff  was  to 
take  charge  of  the  house,  make  necessary  repairs,  and  pay 
necessary  expenses,  until  defendant  should  wish  to  occupy 


INTEREST  IN  POLICY. 


161 


it.  About  time  of  his  taking  charge,  plaintiff  took  out  a 
policy  of  insurance  in  name  of  defendant  for  $500,  and 
paid  the  premium.  House  was  destroyed  by  fire  in  1865 
and  plaintiff  received  on  the  policy  as  defendant's  agent 
the  amount  insured.  Upon  an  accounting  between  the 
parties  it  was  Held^  that  the  plaintiff  owed  the  defendant 
the  amount  of  the  insurance  obtained  by  him  and  that 
while  he  had  no  insurable  interest  he  could  not  be  per- 
mitted to  show  by  his  own  testimony  that  he  intended  to 
protect  and  secure  his  own  interest.  Looney  v.  Looney, 
116  Mass.  283.     1874. 

§  8.  Those  persons  are  deemed  to  be  included  in  the 
policy  who  were  in  the  minds  of  the  parties  when  the  con- 
tract was  made.  Pitney  v.  Glen's  Falls  Ins.  Co.  65  N.  Y. 
6.    1875. 

§  9.  Policy  was  issued  to  one  Palmer,  the  owner, 
"loss,  if  any,  payable  to  plaintiff,"  an  encumbrancer. 
Held,  insurance  was  upon  interest  of  former,  and  that  it 
was  the  loss  sustained  by  that  interest  which  was  to  be 
paid  to  latter  and  that  it  was  not  necessary  to  join  the 
owner  as  a  party.  That  if  he  had  made  claim  defendant 
couid  have  had  interpleader.  That  plaintiff  had  a  right 
to  recover  the  whole  loss  sustained  by  the  owner's  insur- 
able interest,  and  the  balance  if  any  over  the  extent  of 
his  lien  he  would  hold  as  trustee  for  the  owner.  Cone  v. 
Niagara  Fire  Idg.  Co.  60  N.  Y.  619.     1875. 

§  10.  Tei.ant  by  terms  of  the  lease  was  bound  to  re- 
build in  case  of  fire.  The  lessor  procured  insurance  in  his 
own  name  and  paid  the  premium.  Lessee  was  requested 
to  pay  the  premium  but  declined  to  do  so.  Lessee  hav- 
ing rebuilt  brought  suit  in  equity  for  purpose  of  obtaining 
benefit  of  the  insurance.  Held,  that  insurance  was  upon 
interest  of  lessor  and  exclusively  for  his  benefit,  that 
lessee  had  no  right  to  share  therein ;  bill  dismissed.  Ely 
v.  Ely,  80  111.  532.     1875. 

^11.     Where  the  evidence  shows  an  intent  to  insure 
the  mterest  of  a  party  to  whom  loss  is  made  payable,  such 
clause  may  be  regarded  as  a  new  contract  with  real  party 
Vol.  II.— 11 


if 


162 


INTEREST  IN  POLICY. 


'  Ik  I'-^  '■  i 

'  Ik  ' 

'  IS  ■■ 

''HK 

mvi 

[J 


in  interest,  and  such  interest  may  be  shown  by  parol  tes- 
timony. Pitney  v.  Glen's  Falls  Ins.  Co.  65  N.  Y.  6. 
1875. 

§  12.  Policy  insured  Lane  to  amount  of  $2,000 — 
$1,000  on  gin  house  and  $1,000  on  machinery.  Loss  on 
machinery  if  any  payable  to  extent  of  $2,000  to  Pritchett. 
Plantation  belonged  to  Lane  who  leased  it  to  one  Clark 
who  owned  the  machinery  which  he  had  purchased  from 
Pritchett  and  for  which  he  owed  the  price.  Clark  as  re- 
quired by  the  lease,  as  the  agent  of  Lane,  obtained  the  poL 
icy  and  paid  the  premium  with  his  means.  Held,  that 
Lane  was  entitled  to  the  amount  due  under  the  policy ; 
that  Clark  could  not  direct  the  insurance  money  to  be  paid 
to  his  own  creditor — it  belonged  to  his  principal.  Pritch- 
ett V.  Mech.  &  Trad.  Ins.  Co.  27  La.  Ann.  525.     1875. 

§  13.  Upon  the  death  of  the  assured  a  policy  passes 
as  other  choses  in  action  to  an  administrator  and  he  only 
has  a  right  of  action  upon  it.  Georgia  Homo  Ins.  Co.  v. 
Kinnier,  28  Grat.  88.     1876. 

§  14.  In  Louisiana  the  lien  o''  landlord  upon  goods 
of  tenant  is  lost  by  destruction  c.  the  property,  and  does 
not  attach  to  the  insurance  money.  In  re  Keis,  3  Woods, 
18.     1876. 

§  15.  A  creditor  has  no  claim  in  equity  upon  money 
jdue  under  a  policy  obtained  by  another  creditor  issued  at 
his  own  instance  and  cost  and  in  his  own  name.  Wheeler 
V.  Ins.  Co.  3  Woods,  43.     1877. 

§  16.  When  a  husband  has  insured  his  wife's  sep 
arata  property  as  his  own,  he  cannot  recover  without 
proof  of  his  own  interest  and  damages  to  it.  Cohn  v. 
Virginia  Fire  Ins.  Co.  3  Hughes,  272.     1877. 

§  17.  A  party  conveyed  a  farm,  and  as  part  of  the 
consideration  took  a  $4,500  judgment  which  he  entered 
against  the  property  sold.  He  afterwards  accepted  one 
Conner  as  security  for  the  remaining  part  of  the  considerar 
tion,  $3,000,  and  did  not  enter  it  against  the  property  sold. 
The  purchaser  procured  a  policy  of  insurance  for  $3,400, 


INTEREST  IN  POLICY. 


163 


$900  of  which  was  to  be  for  his  benefit,  and  made  a 
written  assignment  of  the  policy  to  the  endor,  stating 
that  the  balance  was  to  be  as  collateral  security  for  money 
loaned  on  the  premises.  Held^  that  a  proper  construction 
of  the  transaction  was  that  the  assignment  which  was  in- 
dorsed upon  the  policy  was  to  secure  the  $4,500  judg- 
ment ;  that  the  parties  considered  that  sum  loaned  on  the 
premises  sold,  and  the  $3,000  as  a  separate  and  independ- 
ent security,  and  that  the  proceeds  of  the  policy  after  the 
fire  were  to  be  apportioned  first,  $900  to  the  purchaser, 
the  balance  to  be  applied  to  the  $4,500  judgment.  Caley 
V.  Hoopes,  86  Pa.  493.     1878. 

§  18.  Loss  being  made  payable  to  a  third  party  does 
not  make  policy  an  insurance  of  another  interest  from 
that  of  the  owner  and  assured.  Van  Alstyne  v.  JEtna 
Ins.  Co.  14  Hun,  360.     1878. 

§  19.  The  rule  that  parol  evidence  is  admissible, 
where  policy  insures  trustee  or  factor,  for  purposes  of  de- 
termining the  person  to  receive  indemnity,  has  no  applica- 
tion where  the  policy  itself  names  the  owners  or  cestui 
que  trust.     Bishop  v.  Clay  Ins.  Co.  45  Conn.  430.     1878. 

§  20.  A  man  conveyed  property  to  his  wife  in  fraud 
of  his  creditors.  She  obtamed  insurance  in  her  own 
name.  A  fire  having  occurred,  and  the  creditors  of  the 
husband  having  filed  a  bill  in  equity  to  subject  the  insur- 
ance money  to  payment  of  the  husband's  debt.  Held^ 
that  they  had  no  equity  in  such  fund  and  the  bill  dis- 
missed.    Bernheim  v.  Beer,  56  Miss.  149.     1878. 

§  21.  One  entitled  to  redeem  land  conveyed  by  him 
to  another  as  security  for  a  debt  has  no  claim  in  absence  of 
a  contract  against  the  latter  on  account  of  insurance  ob- 
tained by  him  upon  the  buildings  for  his  own  benefit  and 
at  his  own  expense.  Mclntire  v.  Plaisted,  68  Me.  363. 
1878. 

§  22.  Policy  was  issued  to  the  "  Minnesota  Land  Co.," 
and  it  being  claimed  on  the  part  of  the  defendant  that 
the  policy  was  void  because  the  company  was  not  a  cor- 


i  IJ 


f 


164 


INTEREST  IN  rOLlCY. 


!     i 


91 


poration.  Held,  that  it  was  immaterial  whether  it  wa8  a 
corporation  or  not,  the  company  doing  business  under  a 
common  name,  and  all  its  acts  not  requiring  corporate 
powers  were  good  both  for  it  and  against  it  if  it  was  not 
a  corporation.  Holbrook  v.  St.  Paul  Ins.  Co.  25  Minn. 
229.     1878. 

§  23.  Lease  bound  the  landlord  to  keep  insured,  and 
the  tenant  in  possession  had  the  option  of  purchase  for  a 
consideration  therein  named.  The  building  was  de- 
stroyed by  fire  and  the  landlord  was  paid  the  insurance. 
Subsequently  the  tenant  exercised  his  right  of  purchase 
under  the  lease  and  claimed  the  insurance  money  from 
the  landlord  as  part  of  the  purchase.  Held,  that  there 
being  no  express  agreement  in  relation  to  the  insurance 
money  that  the  tenant  had  no  right  or  lien  upon  it,  and 
his  bill  dismissed.  Edwards  v.  West,  L.  R  7  Ch.  Div. 
858.    1878. 

§  24.  Owner  of  property  conveyed  it  as  security  for 
debt,  taking  back  a  lease  for  eight  years  at  a  yearly  rent 
of  $105,  with  privilege  of  redemption  or  purchase  on 
payment  of  $1,500.  value  of  premises  at  time  of  fire 
was  $3,500.  But  two  months  of  the  term  conferred  by 
the  lease  remained  when  fire  occurred,  and  the  privilege 
of  redemption  had  not  been  taken  advantage  of  Policy 
insured  former  owner  upon  "  his  interest  as  lessee."  Held, 
that  the  privilege  of  purchase  was  a  part  of  the  interest 
of  assured  as  lessee  and  was  covered  by  the  policy.  That 
the  value  of  such  privilege  was  $2,000.  Creighton  v. 
Homestead  Fire  Ins.  Co.  17  Hun,  78.     1879. 

§  25.  When  agent  of  company  is  notified  of  change 
of  interest  on  renewal  of  a  policy,  the  insurance  is  regard- 
ed as  being  continued  upon  such  interest,  although  no  in- 
dorsement is  made.  Whited  v,  Germania  Fire  Ins.  Co.  76 
N.  Y.  415.     1879. 

§  26.  When  |)olicy  is  made  payable  to  party  who 
brings  the  action,  it  cannot  be  defeated  by  unlawful  acts 
of  the  owner  and  assured.     Westchester  Fire  Ins.  Co.  v. 


LIGHTING. 


^. 


^4^ 


/ 


Foster,  90  111.  121.     1878.    But  see  Continental  Ins.  Co. 
V.  Hulman,  92  111.  145.     1879. 

§  27.  If  property  is  destroyed  before  an  executory 
contract  for  the  sale  is  consummated,  the  purchaser,  in  the 
absence  of  any  provision  of  the  contract  to  the  contrary, 
cannot  claim  or  receive  the  benefit  of  insurance  money 
due  upon  a  policy  held  by  the  vendor,  either  in  reduction 
of  amount  due  upon  the  purchase,  or  by  applying  the 
money  to  replacing  of  the  building.  Rayner  v.  Preston, 
L  R  14  Ch.  Div.  297.  1880.  8.  o.  10  Ins.  L.  J.  76,  556. 
fi.  p.  Plimpton  V.  Farmers'  Mut.  Ins.  Co.  1  Ins.  L.  J.  678. 
1871.     Gilbert  V.  Post,  28  Ohio,  276.     1876. 

See  Alienation,  §  2, 6, 32, 45.  Goods  in  Trust,  6, 8, 0.  Insurable  Interest, 
24,  41.  Mortgagorand  Mortgagee,  5,  7,  8,  11.  12,  14, 15,  20,  21,  29,  83,  84, 
89, 47.  49.  Mutual  Company,  103.  Subrogation,  2.  Title,  12,  57.  Who 
may  Sue,  5,  10,  16. 


LIGHTING. 


§  1.  Policy  prohibiting  the  use  of  kerosene  oil,  except 
in  dwellings,  is  avoided  by  use  of  such  oil  in  a  lamp  left 
upon  the  counter  of  a  store  as  a  protection  against  burg- 
lars. The  store  could  not  be  considered  a  "dwelling" 
because  the  clerk  slept  in  a  small  room  back  of  the  store. 
Cerf  V.  Home  Ins.  Co.  44  Cal.  320.     1872. 

§  2.  Policy  contained  condition  that  if  gunpowder, 
camphene,  spirit  gas,  naphtha,  benzine  or  benzole,  chemi- 
cals, crude  or  refined  coal  or  earth  oils  were  kept  or  used  on 
the  premises  without  consent,  it  should  be  void.  Kerosene 
oil  was  used  to  light  the  cabin  of  the  boat  insured  after 
the  policy  was  issued.  Held^  that  the  term  "  refined  coal 
or  earth  oils  "  could  not  be  held  to  include  kerosene ;  that 
they  should  be  construed  to  mean  only  those  articles  or 
substances  which  are  included  in  the  general  description, 
and  which  are  also  as  highly  inflammable  and  therefore  as 


m 


f 


166 


LIGHTING. 


I  ■  .! 


dangerous  to  the  insured  property  as  naphtha,  benzine  or 
benzole,  and  that  therefore  the  insurance  was  not  voided 
by  the  use  of  kerosene  for  lighting  purposes.  Morse  v. 
Buffalo  Fire  Ins.  Co.  30  Wis.  534.     1872. 

§  3.  The  fact  that  there  is  inserted  in  the  policy  a 
special  clause  as  follows :  "  Permission  is  granted  to  light 
the  premises  with  gasoline  gas  when  the  generator  is  to 
remain  30  feet  from  the  building,"  does  not  prevent  the 
agent  of  the  company  who  issued  the  policy  fi*om  binding 
the  company  V)y  a  parol  agreement  that  the  assured  may 
use  gasoline  temporarily  pending  a  change  from  gas  to 
kerosene.  Winans  v.  AUemania  Fire  Ins.  Co.  38  Wis. 
342.     1875. 

§  4.  When  there  is  no  provision  in  the  policy  making 
it  void  for  a  temporary  increase  of  risk,  the  temporary  use 
of  gasoline  for  lighting  purposes  discontinued  before  the 
fire  does  not  render  the  policy  void.  Mutual  Fire  Ins.  Co. 
V.  Coatsville  Shoe  Factory,  80  Pa.  407.     1876. 

§  6.  Policy  prohibited  use  of  gasoline  for  lighting. 
Building  was  lighted  with  gas  made  from  gasoline.  Held, 
that,  in  the  absence  of  evidence  that  gas  and  gasoline  were 
the  same,  or  similar  in  most  respects,  that  gasoline  may  not 
be  used  or  burned  in  some  other  manner  than  gas  which 
is  manufactured  from  it,  and  that  the  gas  is  as  dangerous 
as  gasoline,  it  could  not  be  assumed  that  the  gas  manufac- 
tured from  the  latter,  was  within  the  prohibition.  Arkell 
V.  Commerce  Ins.  Co.  69  N.  Y.  191.  1877.  Affi'g  7  Hun, 
455. 

§  6.  Upon  an  issue  as  to  whether  an  article  called 
"  mineral  gperm  oil,"  used  for  lighting  purposes  is  a  pro- 
duct of  petroleum  or  not,  defendant  cannot  introduce  in 
evidence  a  phial  containing  a  mixture  called  by  the  same 
name  in  the  trade  without  connecting  it  in  some  way  with 
that  which  was  actually  used  by  the  assured.  Hicks  v. 
Empire  Ins.  Co.  6  Mo.  App.  254.     1878. 

§  7.  Policy  provided  that  defendant  should  not  be  lia- 
ble for  a  loss  occasioned  by  the  use  of  kerosene  oil  as  a 


LIMITATION  CLAUSE. 


167 


light  in  any  bam  or  outbuilding.  Held^  that  condition 
could  not  be  construed  as  referring  to  an  habitual  use,  or 
so  as  to  confine  it  to  the  direct  and  immediate  effect  of  the 
kerosene,  such  as  an  explosion,  but  must  have  contem- 
plated the  danger  resulting  from  upsetting  of  a  lamp  or 
breaking  by  some  intervening  accident.  Nor  is  it  neces- 
sary that  the  use  should  be  by  assured  personally.  If 
used  by  any  member  of  household  it  is  within  terms  of 
policy.  Matson  v.  Farm  Buildings  Ins.  Co.  73  N.  Y.  310. 
1878.    Rev'g  9  Hun.  415. 

See  Increase  of  Risk,  §  17.    Storing  and  Keeping,  7,  16,  18, 19,  23. 


LIMITATION  CLAUSE. 

§  1.  Although  the  limitation  clause  is  valid  and  will 
be  enforced  if  an  action  is  fairly  brought  within  the  lim- 
ited time  with  a  view  to  ascertain  and  enforce  the  rights 
of  the  assured,  it  answers  the  terms  of  sucli  condition,  and 
though  discontinued  voluntarily  without  bad  faith,  if  the 
claim  be  prosecuted  promptly  m  another  action,  it  is  not 
barred.  Fellowes  v.  Madison  Ins.  Co.  2  Disney  Cin.  Supr. 
Ct.  128.     1858. 

§  2.  When  a  waiver  of  the  limitation  clause  is  to  be 
deduced  solely  from  the  acts  and  declarations  of  one  party 
in  the  absence  of  proof  that  anything  has  been  done  or 
stipulated  upon  the  faith  of  it  by  the  other,  the  intention 
to  waive  should  be  clear.  Schroeder  v.  Keystone  Ins.  Co. 
2  Phil.  Rep.  286.     1859. 

§  3.  An  attachment  served  upon  the  company  in  a 
suit  brought  by  creditors  of  the  assured,  does  not  excuse 
failure  to  bring  action  on  the  policy  within  the  limited 
time.  Schroeder  v.  Keystone  Ins.  Co.  2  Phil.  Rep.  286. 
1859. 

§  4.  Further  proofs  being  required  and  a  promise  or 
intimation  held  out  of  payment,  may  constitute  a  waiver 


108 


LIMITATION  CLAUSE. 


of  limitation  clause,  but  if  assured  determines  to  furnish 
no  more  proof,  he  has  no  right  to  rely  upon  action  of  com- 
pany. Curtis  V.  Home  Ins.  Co.  1  Biss.  485.  1865.  And 
see  Ide  v.  Phoenix  Ins.  Co.  2  Biss.  335  Tiote.     1870. 

§  5.  A  limitation  clause  in  reference  to  time  within 
which  suit  must  be  brought  is  valid  find  will  be  enforced. 
Davidson  v.  Phoenix  Ins.  Co.  4  Sawyer,  594.  1866.  Glass 
V.  Walker,  66  Mo.  32.     1877. 

§  6.  Loss  occurred  on  the  17  th  of  October,  1869,  and 
action  was  commenced  on  the  7th  of  November,  1870. 
There  was  an  adjustment  on  the  6th  of  November,  1869, 
when  the  parties  entered  into  an  agreement  in  writing  by 
which  the  assured  agreed  to  accept  the  amount  of  a(^ust- 
ment  and  the  company  promised  to  pay  that  amount  on 
the  6th  of  February,  1870,  unless  the  assured  should  be 
notified  by  the  company  before  that  time  either  personally 
or  by  letter  of  its  intention  to  contest  its  liability  upon  the 
policy.  Heldj  that  even  if  the  assured  did  not  have  a  right 
of  action  upon  the  adjustment,  the  limitation  prescribed  in 
the  policy  did  not  run  during  the  time  mentioned  in  the 
agreement.  This  time  during  which  he  was  induced  by 
the  act  of  the  company  to  delay  bringing  suit  should  not 
be  considered  any  part  of  the  12  months  to  which  his  ac- 
tion was  limited.  Black  v.  Winneshiek  Ins.  Co.  31  Wis. 
74.     1872. 

§  7.  Jury  were  charged  that  "  if  plaintiflF  delayed 
bringing  suit  until  after  the  expiration  of  six  months  in 
consequence  of  inducements  held  out  by  defendant,  caus- 
ing him  to  believe  that  the  loss  would  be  paid  or  adjusted 
without  suit,  this  would  operate  to  remove  the  bar  created 
by  condition  requiring  action  to  be  brought  within  six 
months  after  a  loss."  Held,  no  error.  Mickey  v.  Burling- 
ton Ins.  Co.  35  Iowa,  174.  1872.  s.  p.  Andes  Ins.  Co.  v. 
Fish,  71  111.  620.  1874.  Derrick  v.  Lamar  Ins.  Co.  74  111. 
404.     1874. 

§  8.  The  mere  pendency  of  negotiations,  or  the  fact 
that  occasional  interviews  occurred  between  the  parties  in 
regard  to  an  adjustment  or  settlement,  cannot  have  the 


LIMITATION  CLAUSE. 


169 


effect  of  a  waiver  of  the  limitation  clause  unless  there  is 
something  said  or  done  which  was  either  designed  or  fairly 
calculated  to  induce  a  party  to  have  a  reasonable  belief  on 
sufficient  grounds,  not  merely  that  a  settlement  might  be 
effected,  but  that  the  company  intended  to  waive  benefit 
of  the  provision.  The  mere  expression  of  an  opinion  that 
company  would  settle,  and  requesting  party  to  call,  is 
nothing  more  than  is  implied  by  the  acts  of  the  parties  in 
attempting  to  negotiate  at  all.  McFarl' nd  v.  Peabody 
Ins.  Co.  6  W.  Va.  425.     1873. 

§  9.  A  failure  of  a  prev'ious  action  from  any  cause 
cannot  alter  the  effect  or  change  the  operative  force  of  the 
limitation  clause.  McFarland  v.  ^tna  Ins.  Co.  6  W.  Va. 
437.    1873. 

§  10.  When  performance  of  an  insurance  contract  is 
defeated  by  war  which  prevents  a  suit,  the  ordinary  stat- 
ute of  limitations  only  remains  for  the  protection  of  the 
company.  Phoenix  Ins.  Co.  v.  Underwood,  12  Heiskell, 
424.    1873. 

§  11.  Semble  that  neglect  to  sue  receiver  of  an  insur- 
ance company  within  time  prescribed  by  the  policy  does 
not  bar  the  claim.  Sands  v.  Son,  1  T.  &  C.  (N.  Y.  Sup.) 
13.     1873.     Rev'd  56  N.  Y.  662. 

§  12.    The  limitation  of  time  within  which  action  must  i 

be  brought  commences  to  run  from  the  "  date  of  the  loss,"  ' 

and  not  from  sixty  days  after  loss  is  proved  or  adjusted.  ! 

Carraway  v.  Merchants'  Mut.  26  La._Anp.  298.     1874.  ) 

§  13.  Policy  provided  that  suit  should  be  brought 
within  one  year  next  after  "  any  claim  shall  occur."  Ileldf  I 
that  the  time  thus  limited  did  not  begin  to  run  until  the 
claim  accrued,  and  that  the  time  during  which  the  assured  j 
could  not  sue  according  to  the  terms  of  the  policy  should 
not  be  counted  as  part  of  the  year  within  which  he  was 
required  to  sue.  Chandler  v.  St.  Paul  Fire  Ins.  Co.  21 
Minn.  85.     1874. 

§  14.  Stockholder  made  personally  liable  for  the  debts 
of  an  insurance  company,  cannot  avail  hiraseli  of  the  lim- 


'  X  '■' 


IT, 


,  ,  f 


■'W 


' ' '  Mm 


c 


170 


LIMITATION  CLAUSE. 


itation  clause  in  the  policy.     Davis  v.  Stewart,  26  Ohio 
643.     1875.  ' 

§  15.  The  limitation  clause  is  reasonable  and  bind- 
ing bv  assureoi's  acceptance  of  the  policy.  Underwriters' 
Agency  v.  Sutherlin,  55  Ga.  266.     1875. 

§  16.  Assured  delivered  to  local  agent  of  company 
ten  days  after  the  fire,  a  paper  con  aining  a  detailed  state- 
ment of  the  loss,  by  a  builder,  and  sworn  to.  When  he 
applied  to  the  agent  in  time  to  have  made  out  formal 
proofs,  he  was  informed  that  it  was  useless,  and  would  be 
but  a  loss  of  time,  as  the  company  was  entirely  bankrupt. 
This  information,  coming  from  the  agent,  was  believed, 
and  no  other  proofs  were  furnished.  Before  the  expira- 
tion of  a  year  after  the  fire,  court  had  taken  hold  of  all 
the  funds  of  the  company  as  a  trust  fund  for  use  of  credit- 
ors, in  a  suit  brought  in  their  behalf  Held,  that  assured 
was  entitled  to  prove  his  claim,  and  was  not  barred  by 
limitation  clause  in  the  policy.  Pennell  v.  Chandler,  5 
Ins.  L.  J.  107.     1875.    111. 

§  17.  Defective  summons  or  process  may  be  amended 
80  as  to  prevent  company  from  availing  itself  of  the  de- 
fense that  action  is  not  brought  in  the  limited  time.  Bur- 
ton V.  Buckeye  Ins.  Co.  26  Ohio,  467.     1875. 

§  18.  A  denial  of  all  liability  and  peremptory  and  ab- 
solute refusal  to  pay,  operates  as  a  waiver  of  the  limitation 
clause.  Upon  such  denial  and  refusal  an  action  may  be 
commenced  at  once.  State  Ins.  Co.  v.  Maackens,  9  Vroom, 
N.  J.  L.  R.  564.  1876.  Williamsburg  City  Ins.  Co.  v. 
Cary,  83  111.  453.     1876. 

§  19.  Negotiations  for  a  settlement  without  any  ref 
erence  to  the  limitation  clause,  and  the  further  fact  that 
the  negotiations  terminated  to  the  knowledge  of  the  as- 
sured in  sufficient  time  to  have  enabled  him,  if  sufficiently 
alive  to  the  terms  of  his  contract,  to  have  commenced  his 
action  within  the  limited  time,  does  not  show  any  right 
on  his  part,  either  in  law  or  in  equity,  to  prevent  com- 
pany from  availing  itself  of  the  limitation  clause.  Davis 
V.  Canada  Farmers'  Ins.  Co.  39  Up.  Can.  Q.  B.  462.    1876. 


LIMITATION  CLAUSE. 


171 


§  20.  The  limitation  clause  is  not  against  public  pol- 
icy, nor  is  it  merged  in  the  general  limitation  laws  of  the 
State.  Ins.  Co.  ▼.  La  Croix,  35  Tex.  249.  1872.  45  Tex. 
158.    1876. 

§  21.  When  policy  provides  that  a  claim  under  it 
must  he  prosecuted  within  a  limited  time,  a  notice  of  a  loss 
and  demand  of  payment  cannot  be  construed  as  such  a 
prosecution.  Ins.  Co.  v.  La  Croix.  35  Tex.  249.  1872. 
45  Tex.  158.     1876. 

§  22.  When  agents  of  company  delay  settlement  upon 
pretense  of  seeking  to  adjust  amount  of  loss,  and  while  ad- 
mitting liability,  prolong  the  negotiation,  and  induce  as- 
sured to  delay  bringing  an  action,  by  leading  him  to  be- 
lieve that  limitation  clause  would  not  be  insisted  upon,  it 
constitutes  bad  faith  on  part  of  the  defendant,  and  a  ver- 
dict in  favor  of  assured  on  such  an  issue  will  be  sustained 
on  slight  evidence.  Little  v.  Phoenix  Ins.  Co.  123  Mass. 
380.     1877. 

§  23.  When  complaint  is  filed  within  the  year,  but 
no  summons  is  issued  at  request  of  company's  agent  and 
attorney,  company  is  estopped  from  subsequently  setting 
up  that  suit  was  not  commenced  within  the  year.  Akin 
v.  Liv.,  L.  &  G.  Ins.  Co.  6  Ins.  L.  J.  341.  1877.  U.  S. 
Circuit,  Ark. 

§  24.  A  limitation  clause  prescribing  that  action 
must  be  brought  within  twelve  months  after  loss  is  inop- 
erative under  Maine  statutes.  R.  S.  c.  49,  sect.  62.  Dol- 
bier  v.  Agricultural  Ins.  Co.  67  Me.  180.     1877. 

§  25.  An  injunction  restraining  the  receiving  of  a 
claim  under  a  policy  docs  not  affect  nor  suspend  the  limi- 
tation clause.  Suit  must  be  brought  within  time  limited. 
Wilkinson  v.  First  National  Fire  Ins.  Co.  72  N.  Y.  499. 
1878.    Affi'g  9  Hun,  522. 

§  26.  The  section  of  Code  (406)  saving  rights  of  par- 
ties stayed  by  injunction,  has  no  application  where  the 
limitation  is  prescribed  by  contract  of  the  parties.     Wil- 


I 


f 


172 


LIMITATION  CLAUSE. 


^^ 


kinson  v.  First  National  Fire  Ins.  Co.  72  N.  Y.  499.    1878 
Affi'g  9  Hun,  522. 

§27.  The  "loss  occurs"  at  time  property  is  de- 
stroyed, and  limitation  then  begins  to  run.  Johnson  v. 
Humboldt  Ins.  Co.  91  111.  92.     1878. 

§  28.  Policy  provided  that  no  action  should  be  sus- 
tainable unless  commenced  within  twelve  months  next 
after  "  the  loss  shall  occur."  Held,  the  loss  should  be 
deemed  to  "  occur  "  when  the  company  pays  it,  or  is  law- 
fully called  upon  to  pay  it.  That  the  limitation  did  not 
begm  to  run  until  the  loss  became  due  and  payable.  Hay 
V.  Star  Fire  Ins.  Co.  77  N.  Y.  235.  1879.  s.  p.  Mix  v. 
Andes  Ins.  Co.  9  Hun,  397.  1876.  Rev'd  74  N.  Y.  53, 
on  another  point.  Steen  v.  Niagara  Fire  Ins.  Co.  12  N. 
Y.  Weekly  Dig.  3.     1881.    N.  Y.  Sup. 

§  29.  There  can  be  no  waiver  of  limitation  clause  by 
acceptance  by  company's  attorney  of  costs  in  a  former 
action  discontinued  ;  nor  by  an  extension  of  time  to  make 
case  and  exceptions ;  nor  by  his  insisting  upon  previous 
trial  that  plaintiflfs  remedy  was  in  equity  and  not  at 
law.  Arthur  v.  Homestead  Fire  Ins.  Co.  78  N.  Y.  462. 
1879. 

§  30.  Promises  of  settlement  and  statement  to  as- 
sured that  there  was  no  need  of  proceeding  in  court,  will 
excuse  discontinuance  of  a  pending  suit,  and  prevent  com- 
pany from  availing  itself  of  limitation  clause  in  a  suit 
brought  subsequently.  Home  Ins.  Co.  v.  Myer,  93  111. 
271.     1879. 

§  31.  When  company  has  the  option  to  rebuild,  Sem- 
hie  the  period  prescribed  for  the  commencement  of  a  suit 
does  not  commence  to  run  until  company  has  determined 
not  to  rebuild,  as  claim  does  not  ripen  into  a  money  de- 
mand until  after  that  time.  Westcnester  Fire  Ins.  Co.  v. 
Dodgf^.  9  Ins.  L.  J.  909.     1880.     Mich. 

See  Agent,  %  37.     Mutual  Company,  15,  SS,  61.      Parul  Contract,   17. 
Proofs  of  Loss,  48,  74.     Waiver,  S,  85.     Warranty  and  Repreacntatiou,  27. 


MORTGAGOR  AND  MORTGAGEE. 

§  1.  The  liability  of  company  to  a  mortgagee  to 
whom  the  loss  is  made  payable,  cannot  be  reduced  by  the 
fact  that  the  former  has  ample  security  in  the  value  of  the 
land.    Rex  v.  Ins.  Co.  2  Phil.  Rep.  357.     1859. 

§  2.  A  mortgagee  who  has  obtained  a  policy  upon 
his  interest  as  such,  ceases  to  have  any  interest  upon  fore- 
closure and  purchase  under  a  decree  of  sale.  Gaskin  v. 
Phcenix  Ins.  Co.  6  Allen,  N.  B.  429.     1866. 

§  3.  If  a  mortgagee  to  whom  loss  is  payable  receives 
anything  from  sale  of  the  property  insured,  after  the 
fire,  it  should  be  deducted  from  the  amount  due  under 
the  policy.  Harris  v.  Gaspee  Fire  Ins.  Co.  9  R.  I.  207. 
1869. 

§  4.  Policy  provided  that  it  should  be  paid  to  a 
mortgagee  "  whenever  and  as  soon  as  his  lien  upon  said 
property,  by  virtue  of  said  mortgage,  is  established  by 
decree  of  court  or  otherwise ; "  Had,  to  enable  mort- 
gagee to  recover  it  was  not  necessary  to  establish  a  lien 
upon  the  whole  property  covered  by  the  insurance,  but 
that  if  there  was  a  lien  decreed  covering  two-thirds  or 
even  one-third,  it  was  sufficient,  it  being  equal  in  value 
to  the  amount  of  the  insurance ;  in  such  a  case,  com- 
pany is  not  liable  for  interest  until  such  lien  is  decreed. 
Harris  v.  Gaspee  Fire  Ins.  Co.  9  R.  I.  207.     1869.    ^ 

§  5.  The  insertion  of  a  clause  in  the  policy,  making 
loss  payable  to  a  mortgagee  or  other  third  party,  does 
not  change  the  relations  of  the  parties,  and  insurance  is 
liable  to  be  defeated  by  any  breach  of  its  conditions 
by  the  assured.  Livingstone  v.  Western  Ins.  Co.  16  Grant 
Ch.  9.  1869.  Van  Buren  v.  St.  Joseph  Ins.  Co.  28  Mich. 
398.  1873.  Griswold  v.  ..\merican  Cent.  Ins.  Co.  70  Mo. 
654.  1874.  Flaherty  v.  Germauia  Ins.  Co.  7  Ins.  L.  J. 
226.    1875.    Pa.     State  Ins.  Co.  v.  Maackens,  9  Vroom, 


1 


a 


174 


M0BT6AG0B  AND  MOKTGAGEE. 


L.  R  564.  1876.  Smith  v.  Union  Ins.  Co.  120  Mass. 
90.  1876.  Mervin  v.  Star  Fire  Ins.  Co.  7  Hun,  659. 
1876.  Affi'd  (without  opinion)  72  N.  Y.  603.  Brunswick 
Savings  Inst.  v.  Commercial  Union  Ins.  Co.  68  M.  i?13. 
1878.  Fitchburg  Savings  Bank  v.  Amazon  Ins.  U  125 
Mass.  431.  1878.  Continental  Ins.  Co.  v.  Hulman,  92 
111.  145.  1879.  Humphrey  v.  Hartford  Ins.  Co.  15 
Blatch.  523.  1879.  Warbasse  v.  Essex  Co.  Mut.  Ins.  Co. 
13  Vroom,  L.  R  203.  1880.  Lias  v.  Roger  Williams  Ins. 
Co.  9  Ins.  L.  J.  154.  1880.  U.  S.  Circuit,  N.  H.  Bald- 
win  V.  Phoenix  Ins.  Co.  10  Ins.  L.  J.  32.     1881.    N.  H. 

§  6.  When  policy  insured  owner  and  mortgagor,  loss 
payable  to  a  mortgagee,  the  interest  of  the  former  is  in- 
sured, and  he  may  maintain  an  action  in  his  own  name  for 
use  of  the  mortgagee.  Illinois  Fire  Ins.  Co.  v.  Stanton,  67 
111.  354.     1870. 

§  7.  When  a  mortgagor  is  bound  by  the  mortgage  to 
keep  premises  insured  for  benefit  of  mortgagee,  and  does 
in  fact  keep  them  insured  by  a  policy  which  contains  no 
statement  that  the  mortgagee  has  any  interest  therein,  tiie 
latter  will,  notwithstanding,  have  an  interest  in  and  a  lien 
upon  the  money  due  under  the  policy  enforceable  in  equi- 
ty.   Re  Sands  Ale  Co.  3  Biss.  175.     1872. 

§  8.  Where  insurance  is  obtained  by  a  mortgagee  un- 
der authority  contained  in  the  mortgage,  at  expense  of  the 
mortgagor,  it  is  held  for  the  benefit  ano  protection  of  both 
parties ;  the  implied  obligation  arising  is  that  the  insur- 
ance money,  when  paid  to  the  mortgagee,  shall  apply  upon 
the  mortgage  debt.  Waring  v.  Loder,  63  N.  Y.  681. 
1873. 

§  9.  Whether  company  can  compel  an  assignment  of 
the  mortgage  held  by  a  mortgagee  to  whom  the  loss  is 
made  payable,  qvery  ?  Reesor  v.  Provincial  Ins.  Co.  33 
Up.  Can.  Q.  B.  357.     1873. 

§  10.  When  the  insurance  is  upon  the  interest  of  the 
mortgagee  at  his  own  expense,  with  no  agreement  or  un- 
derstanding with  the  mortgagor,  the  insurance  ia  not  upon 


MOBTOAGOB  AKD  MOBTOAGEE. 


175 


the  debt ;  it  is  the  property  which  is  insured,  and  the  pro- 
tection to  the  debt  is  only  a  sequence.  Hence  for  a  loss 
to  the  property  the  company  is  liable  irrespective  of  the 
value  undestroyed,  notwithstanding  it  may  equal  amount 
of  mortgage  debt.  Excelsior  Fire  Ins.  Co.  v.  Royal  Ins. 
Co.  55  N.  Y.  343.     1873. 

^11.  When  the  interest  of  the  mortgage  was  insured, 
and  it  appeared  that  such  interest  was  acquired  under  a 
contract  to  purchase  a  mortgage  for  a  certain  sum,  only  a 
portion  of  which  was  paid  at  time  of  fire.  Held,  assured 
could  recover  to  fiill  extent  of  interest  as  contracted  for, 
being  the  full  amount  secured  by  and  unpaid  upon  the 
mortgage.  Excelsior  Fire  Ins.  Co.  v.  Royal  Ins.  Co.  55 
N.  Y.  343.     1873. 

§  12.  Money  received  by  a  mortgagee  to  whom  loss 
is  payable  takes  the  place  of  property  destroyed,  and  is 
still  collateral  until  applied  in  payment  by  mutual  con- 
sent, or  by  some  exercise  by  the  mortgagee  of  the  right  to 
demand  payment  of  the  debt,  and  upon  default  of  pay- 
ment to  convert  the  securities.  In  such  a  case  the  owner 
of  a  second  mortgage  has  no  right  in  equity  to  insist  that 
the  insurance  shall  be  applied  in  reduction  of  the  first 
mortgage.  Gordon  v.  Ware  Savings  Bank,  115  Mass. 
588.     1874. 

§  13.  An  insurance  company  which  has  issued  a 
policy,  loss  being  made  payable  to  a  mortgagee  to  the  ex- 
tent of  his  interest  is  not  a  proper  party  to  a  suit  brought 
by  tlie  latter  to  obtain  a  reformation  of  the  mortgage. 
Newman  v.  Home  Ins.  Co.  20  Minn.  422.     1874. 

§  14.  A  mortgagee  has  no  lien  upon  insurance  money 
due  and  paid  to  owner  and  mortgagor  unless  he  has  filed 
notice  as  required  by  statute.  (R.  S.  ch.  49,  sec.  32,  Me.) 
Burns  v.  Collins,  G4  Me.  215.     1874. 

§  15.  A  purchaser  of  property  subject  to  a  mortgage 
cannot  surrender  a  policy  previously  obtained  by  the 
owner  and  existing  for  the  benefit  and  security  of  the 
mortgagee  and  take  a  new  policy  in  bis  name  to  prejudice 


176 


MORTGAGOR  AND  MORTGAGEE. 


I 


V     I 


of  the  latter.  In  such  case,  if  the  building  burns,  the 
mortgagee  has  an  equitable  lien  and  claim  upon  the  insur- 
ance money  due  under  such  policy.  The  stipulation  in 
the  mortgage  binding  the  mortgagor  and  owner  to  keep 
property  insured  for  the  benefit  of  the  mortgagee  is  in 
equity  a  sort  of  adjunct  to  the  mortgage,  and  is  binding 
on  the  mortgagor  and  on  all  others  in  his  shoes  with  no- 
tice.    Miller  v.  Aldrich,  31  Mich.  408.     1875. 

§  16.  When  the  mortgagor  is  bound  to  keep  the 
premises  insured,  and  in  case  he  does  not,  mortgagee  is 
authorized  to  effect  the  insurance,  the  premiums  to  be 
charged  against  the  former  upon  payment  o^  the  loss,  the 
amount  received  is  applied  in  reduction  of  the  mortgage, 
company  is  not  entitled  to  subrogation.  Provincial  Ins. 
Co.  V.  Resser,  21  Grant  Ch.  296.  1874.  But  see  Westma- 
cott  V.  Hawley,  22  Grant  Ch.  382.     1875. 

§  17.  The  rights  of  parties  to  an  insurance  compact 
are  fixed ;  at  the  time  of  the  fire.  The  foreclosure  of  a 
mortgage  held  by  a  party  to  whom  the  loss  is  payable 
cannot  operate  to  defeat  his  right  to  recover  the  amount 
which  remained  due  on  the  mortgage.  Hadley  v.  Ins.  Co. 
55  N.  H.  110.     1875. 


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§  18.  Person  to  whom  loss  is  payable  holds  subject  to 
the  conditions  of  the  policy  and  under  a  liability  to 
his  rights  defeated  by  a  breach  of  the  conditio  •■ 
assured.  If  suits  by  both  parties  be  pendi:(ig,  • 
by  virtue  of  its  equitable  control  over  action  s  ' 
control  the  litigation  that  it  may  not  be  made  v.;>^atiou 
State  Ins.  Co.  v.  Maackens,  9  Vroom,  N.  J.  L.  R.  564. 
1876. 

§  19.  When  policy  is  issued  to  a  mortgagor  of  per- 
gonal property,  loss,  if  any,  payable  to  mortgagee,  after 
title  of  latter  has  become  absolute  at  law  by  terms  of  the 
mortgage,  and  notice  of  amount  due  is  filed  as  prescribed 
by  the  statute,  the  insurance  is  not  limited  to  value  of 
the  equity  of  redemption,  but  covers  the  entire  property. 

Smith     V.     F.vohnnw'     Fii'«^     Tnss     Cn     k    Jnnna    .6r    Sn    ±Q9 


Smith   v. 
1876. 


Fire   Ins.  Co.  8  Jones  *&  Sp.  492. 


MOBTGAOOB  AND  MOBTQAOEE. 


177 


§  20.  Policy  insured  owner  and  mortgagee  "  as  inter- 
est may  appear,"  loss,  if  any,  first  payable  to  latter.  Be- 
lieving defendant  to  be  insolvent,  the  latter  insured  his 
interest  as  mortgagee  in  another  company,  and  consented 
to  cancellation  of  policy  in  suit.  After  the  fire  the  owner 
repaired  and  restored  building  insured  as  i*:  ./as  previous 
thereto.  Held,  that  mortgagee  had  no  authority  to  consent 
to  cancellation ;  that  as  building  had  been  restored  he  had 
sustained  no  loss  or  damage,  which  was  payable  to  the 
owner  alone.     Matter  of  Moore,  6  Daly,  541.     1876. 

§  21.  Property  insured  was  mortgaged  to  plaintiff  to 
secure  $99,000.  Policy  insured  his  interest  as  mortgagee. 
Assured  agreed  to  sell  the  mortgage /or  $62,000,  by  an 
executory  written  contract,  and  at  time  of  fire  had  re- 
ceived on  account  of  the  same,  $20,000.  Purchaser  had 
agreed  to  keep  property  insured  but  had  not  done  so. 
The  insurance  in  question  was  procured  and  paid  for  by 
the  plaintiff  himself.  Company  claimed  that  the  interest 
of  the  plaintiff  was  limited  to  the  difference  between  the 
$60,000,  at  which  he  had  agreed  to  sell  the  mortgage  and 
amount  received,  $20,000,  or  $40,000,  and  that  it  was 
liable  for  its  proportionate  share  of  such  amount  only. 
Held,  untenable  ;  that  an  executory  contract  to  convey  a 
mortgagee's  interest  does  not  deprive  him  of  his  right  to 
insure  or  limit  his  recovery  to  amount  of  unpaid  purchase- 
money,  nor  is  the  result  affected  by  the  fact  that  pur- 
chaser of  the  mortgage  was  responsible  for  the  premium, 
and  the  amount  could  be  treated  as  paid  by  him.  Haley 
V.  Manufacturers'  Ins.  Co.  120  Mass.  292.     1876. 

§  22.  Under  usual  covenant  in  mortgage  authorizing 
mortgagee  to  effect  insurance,  the  premiums  paid  by  him 
may  be  added  to  the  mortgage  debt.  Leland  v.  Collver, 
34  Mich.  418.     1876. 

§  23.  A  mortgagee  to  whom  loss  is  made  payable 
with  special  "  mortgagee  clause  or  agreement,"  has  no 
right  to  consent  or  authorize  cancellation  of  policy  as 
against  the  assured.  Matter  of  Moore,  6  Daly,  541. 
1876. 

§  24.    When  party  to  whom  loss  is  made  payable  has 
Vol.  II.— la 


VA 


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178 


MORTGAGOB  AND  MORTGAGEE. 


received  before  action  is  commenced  an  assignment  of  the 
whole  right  of  action  under  the  policy,  he  is  entitled  ab- 
solutely to  the  whole  proceeds  of  the  insurance,  and  it  is 
immaterial  that  the  debt  which  the  assured  owed  the 
plaintiff  was  paid  in  part  pending  the  Jitigation.  North- 
westera  Mutual  Life  Ins.  Co.  v.  Germania  Fire  Ins.  Co.  40 
Wis.  446.     1876. 

§  25.  Where  loss  is  made  payable  to  third  party,  a 
mortgagee,  the  owner  and  assured  cannot  maintain  au  ac- 
tion to  recover  a  loss,  while  the  mortgagee  is  unpaid. 
Roussel  V.  St.  Nicholas  Ins.  Co.  9  Jones  -fe  Sp.  279.    1876. 

§  26.  Policy  about  expiring  plaintiff  paid  local  agent 
premium  for  renewal,  and  received  a  renewal  receipt. 
About  same  time  the  mortgagees  in  another  place  to  whom 
policy  had  been  assigned  to  extent  of  their  interest,  anx- 
ious to  have  policy  renewed,  applied  to  another  agent. 
By  company's  mistake  a  new  policy  was  made  out  in  name 
of  the  raortL^agees  as  owners.  It  remained  in  office  of 
local  agent  until  after  the  fii-e.  Company  settled  with  the 
mortgagees  by  paying  the  amount  of  their  interest.  Ac- 
tion being  brought  by  the  owner  and  assured  under  origi- 
nal  policy  upon  the  renewal  contract.  Ileld^  that  plaint- 
iff could  not  be  prejudiced  by  mistake  of  the  company  in 
issuing  policy  to  the  mortgagees,  that  he  was  entitled  to 
recover  upon  the  completed  contract  of  renewal  the 
amount  of  the  policy  less  the  amount  paid  to  the  mort- 
gagees. Akin  v.  Li  v.,  L.  «fe  G.  Ins.  Co.  6  Ins.  L.  J.  341. 
1877.     U.  S.  Circuit,  Ark. 

§  27.  Where  loss  is  made  payable  to  a  mortgagee 
who  brings  suit  upon  the  policy,  evidence  of  admissions 
made  by  the  owner  and  assured  after  the  fire  is  not  adrais- 
eible.     Browning  v.  Home  Ins.  Co.  71  N.  Y.  508.     1877. 

§  28.  The  authority  conferred  by  a  mortgage  upon 
the  mortgagee  to  procui'e  insurance,  does  not  prevent  the 
latter  from  obtaining  iin  insurance  upon  Tiis  interest  as 
mortgagee,'  and  in  such  case  the  company  is  entitled  to 
the  benefit  of  a  provision  in  its  policy  for  an  assignment 
of  the  mortgage  and  subrogation.  Foster  v.  Van  Reed, 
ro  N.  Y.  19.  1877.  8.  p.  Dick  v.  Franklin  Fire  Ins.  Co. 
10  Ins.  L.  J.  468.     1881.     Mo. 


MOBTOAGOB  AND  MOBTGAOBB. 


179 


§  29.  A  creditor  or  mortgagee  who  obtains  a  policr' 
for  his  own  protection  at  his  own  instance  on  his  debtors 
property  is  not  liable  to  account  to  the  debtor  for  the 
money  paid  in  case  of  fire.  Archambault  v.  Galarneau 
22  L  C.  Jurist,  105.     1877. 

§  30.  By  mortgage  clause  attached  to  policy,  issued 
in  name  of  owner  and  mortgagor,  company  agreed  that 
<'  the  insurance,  as  to  the  interest  of  the  mortgagee  only, 
should  not  be  invalidated  by  any  act  or  ueglect  of  the 
mortgagor  or  owner,  <fec.,"  with  provision  for  subrogation 
and  assignment.  In  an  action  upon  the  policy  brought  by 
the  mortgagee.  Held,  that  this  clause  operated  as  an  in- 
dependent insurance  of  the  mortgagee's  interest,  and  that 
defendant  could  not  set  up  any  defense  based  upon  any 
act  or  neglect  of  the  mortgagor,  whether  committed  be- 
fore or  after  the  issue  of  the  policy,  or  the  making  of  the 
agreement  between  the  company  and  the  mortgagee. 
That  plaintiff  was  unaffected  by  additional  insurance  on 
interest  of  the  mortgagor,  of  which  he  was  ignorant,  and 
had  no  interest  in,  and  defendant  could  not  therefore  avail 
itself  of  contribution  clause.  Hastings  v.  Westchester 
Fire  Ins.  Co.  73  N.  Y.  141.  1878.  s.  p.  Hartford  Fire 
Ins.  Co.  V.  Olcott,  97  111.  439.  1877.  And  in  similar  case 
policy  being  forfeited  to  mortgagor,  a  company  is  entitled 
to  subrogation.  Ulster  Co.  Ins.  v.  Leake,  73  N.  Y.  IGl. 
'SiQ^'g  11  Hun,  515. 

§  31.  Where  loss,  if  any,  is  made  payable  to  a  mort- 
gagee, the  exercise  of  the  option  to  rebuild  on  part  of 
company  by  giving  notice  to  that  effect,  the  contract  to 
insure  is  superseded  by  a  building  contract,  and  the  title 
to  the  caiise  of  action  founded  upon  it  is  in  the  assured 
and  not  in  the  mortgagee.  Hence  company  not  liable  to 
an  action  by  the  latter.  Heilmann  v.  Westchester  Fire  Ins. 
Co.  75  N.  Y.  7.    1878. 

§  32.  A  mortgagee  who  is  not  a  party  nor  pi'ivy  to  the 
contract  of  insurance  by  a  mortgagor  can  claim  no  benelit 
under  it.  The  former  cannot  prevent  company  from  ex- 
ercising its  option  to  rebuild.  Stamps  v.  Commercial 
Fire  Ins.  Co.  7  Ins.  L  J.  256.     1878.    N.  C.    77  N.  C.  209, 


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180 


MORTGAGOR  AND  MORTGAGEE. 


§  33.  A  mortgagee  who  has  obtained  insurance  with- 
out knowledge  or  consent  of  the  owner  in  latter's  narae, 
with  loss  made  payable  to  former  as  interest  may  appear^ 
is  not  affected  by  a  prior  policy  obtained  by  the  owner 
upon  his  interest.  Westchester  Fire  Ina  Co.  v.  Foster,  90 
111.  121.  18*78.  But  see  Continental  Ins.  Co.  v.  Hulman, 
92  111.  145.     1879. 

§  34.  When  policy  is  obtained  by  a  mortgagor  insur- 
ing his  interest  exclusively  in  the  building  ana  also  a  cer- 
tain amount  on  his  personal  property,  there  being  no  facts 
that  would  justify  an  inference  that  it  was  obtained  in 
pursuance  of  condition  in  the  mortgage  requiring  him  to 
keep  insurance  for  the  benefit  of  the  mortgagee.  Ifeld^ 
that  the  latter  has  no  equitable  lien  upon  a  policy  and  in- 
surance money  thus  obtained.  Stearns  v.  Quincy  Ins.  Co 
124  Mass.  61.     1878. 

§  35.  Assignee  of  mortgage  is  entitled  to  same  rights 
as  the  mortgagee  in  regard  to  insurance  premiums  ad- 
vanced or  paid  by  him  on  mortgagor's  default  to  keep  in- 
surance according  to  his  covenant.  Montague  v.  Boston 
and  Albany  R.  R.  124  Mass.  242.     1878. 

§  36.  A  moi-tgagee  to  whom  loss  is  payable  is  not 
bound  by  an  adjustment  of  a  loss  made  with  the  assured. 
Harrington  v.  Fitchburg  Ins.  Co.  124  Mass.  126.     1878. 

§  37.  Incompetent  for  mortgagee,  to  whom  loss  is 
payable,  and  who  biings  an  action,  to  prove  by  parol  evi- 
dence that  company  intended  to  insure  plaintiff's  inter- 
est as  mortgagee.  Fitchburg  Savings  Bank  v.  Amazon 
Ins.  Co.  125  Mass.  431.     1878. 

§  38.  The  mortgagee  takes  an  assignment  of  the  pol- 
icy suV)ject  to  the  liability  of  its  being  rendered  void  by 
acts  of  the  assured  and  mortgagor.  Mechanics  Society 
V.  Gore  District  Ins.  Co.  3d  Tupper,  151.  1878.  Rev'g 
40  Up.  Can.  Q.  B.  220. 

§  39.  If  mortgagor  is  bound  by  agreement  to  insure 
mortgaged  property  for  better  security  of  the  mortgagee, 
the  latter  has  an  equitable  lien  upon  a  policy  taken  out 


MORTGAGOR  AND  MORTGAGEE. 


181 


by  the  mortgagor  to  extent  of  the  mortgagee's  interest, 
and  this  equity  exists  notwithstanding  clause  authorizing 
insurance  to  be  procured  by  the  'mortgagee.  Wheeler  v. 
Ins.  Co.  11  Otto,  439.     1879. 

§  40.  A  mortgagor  has  no  claim  against  the  mort- 
gagee for  the  amount  of  a  return  premium  on  a  policy  ob- 
tained by  the  latter  for  his  security  under  the  terms  of  the 
mortgage  and  canceled  on  account  of  the  sale  of  the  prop- 
erty unless  actually  paid  to  him  by  the  insurance  com- 
pany.   Parker  v.  Smith  Charities,  127  Mass.  499.     1879. 

§  41.  A  second  policy  obtained  by  owner  and  mort- 
gagor will  defeat  an  action  upon  a  prior  policy  by  the 
mortgagee,  to  whom  loss  was  made  payable.  Continental 
Ina  Co.  V.  Hulman,  92  III  14.5.     1879. 

§  42.  Policy  insured  owner,  loss,  if  any,  payable  to 
mortgagee,  with  "  mortgagee  clause  "  attached.  There  was 
other  insurance  procured  by  the  owner.  The  whole  loss 
amounted  to  $2,788  44,  and  the  amount  due  under  former 
policy  as  adjusted,  was  $1,507  69.  But  as  mortgagee  was 
not  affected  by  the  other  insurance,  the  company  paid  him 
the  amount  of  his  mortgage,  $3,000,  and  brought  action  to 
foreclose  it.  It  was  clamied  on  part  of  owners  that  com- 
pany was  bound  to  credit  the  whole  $2,788  44  as  a  pay- 
ment upon  the  mortgage.  Plaintiff  claimed  that  it  was 
only  bound  to  credit  the  $1,507  69,  being  the  portion  of 
the  loss  for  which,  as  between  it  and  the  owner,  it  be- 
came liable.  HeM^  that  the  latter  was  correct.  Phoenix 
Ina  Co.  V.  Floyd,  19  Hun,  287.     1879. 

§  43.  If  a  mortgage  held  by  the  party  to  whom  the 
loss  is  made  payable  as  additional  security,  is  paid,  the 
mortgagee  can  transfer  no  rights  to  the  policy  and  insur- 
ance by  assignment.  Kanady  v.  Gore  District  Mut.  Fire 
Ina  Co.  44  Up.  Can.  Q.  B.  261.     1879. 

§  44.  Semhle  that  where  the  policy  is  made  payable 
to  the  mortgagee  that  the  legal  title  to  the  policy  vests 
upon  its  execution  in  him.  Appleton  Iron  Co.  v.  British 
America  Assurance  Co.  46  Wis.  23.     1879. 


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182 


MOUTOAGOB  AND  MORTGAGEQ. 


§  45.  The  rights  of  a  mortgagee  to  whom  loss  is  pay. 
able,  cannot  be  affected  by  death  of  the  assured.  West- 
chester Fire  Ins.  Co.  v.  Dodge,  9  Ins.  L.  J.  909.  1880. 
Mich. 

§  46.  Mortgagee  obtained  policy  upon  his  interest  as 
such  under  and  by  virtue  of  an  agreement  with  the  owner 
and  mortgagor  that  the  insurance  should  be  applied  for 
benefit  of  latter  in  reduction  of  the  mortgage  debt.  Pre- 
vious insurance  had  been  upon  interest  of  owner  with  loss 
payable  to  mortgagee.  The  mortgagee  was  not  aware  that 
this  policy  was  different  until  after  the  fire,  when  he  de- 
livered it  to  the  mortgagor  and  at  same  time  notified  the 
company  in  writing  that  the  insurance  was  for  benefit  of  the 
owner.  Building  was  repaired  by  the  mortgagor.  Heldy 
that  there  was  an  equitable  assignment  of  the  policy  to 
the  owner  who  could  maintain  action  in  his  own  name; 
that  the  repairing  of  the  property  and  fact  that  the  securi- 
ty afforded  by  the  mortgage  was  unimpaired  by  the  fire 
corstituted  do  defense;  and  that  company  could  not  be 
subrogated  to  mortgagee's  interest,  -^tna  Ins.  Co.  v. 
B  v'^er,  10  Ins.  L.  J.  275.     1880.     Ind. 

§  47.  Where  a  mortgagee  insures  property  by  au- 
thority of  mortgagor  and  charges  him  with  expense,  any 
insurance  recovered  should  be  accounted  for.  Otherwise, 
when  it  is  obtained  on  mortgagee's  own  account  only.  If 
insurance  is  collected  under  a  policy  in  which  it  is  agreed 
between  the  insured  and  insurer  that  the  company,  in  case 
of  loss,  should  be  subrogated  to  right  of  the  mortgagee, 
the  insurance  is  not  in  fact  on  the  mortgagor's  account,  nor 
is  it  such  an  insurance  as  could  be  made  available  to  him. 
Stinchfield  v.  Milliken,  71  Me.  567.     1880. 

§  48.  Policy  insured  a  mortgagee  upon  his  interest 
but  by  agreement,  which  existed  for  the  benefit  of  the 
owner  and  mortgagor,  the  money  received  thereunder  was 
to  be  applied  to  the  reduction  of  the  mortgage  debt.  In 
a  suit  brought  upon  such  policy.  Held,  that  it  was  no  de- 
fense that  the  real  estate  was  security  for  the  mortgage 
debt,  or  that  the  building  insured  had  been  repaired  and 
rebuilt.    JCtna  Ins.  Co.  v.  Baker,  71  Ind.  102.     1880. 


MUTUAL  COMPANIES. 


183 


§  49.  If  a  mortgagor  in  the  mortgage  has  agreed  to 
effect  an  insurance  upon  the  mortgaged  property  for  the 
benefit  of  the  mortgagee,  the  latter  has  an  equitable  lien 
upon  the  money  due  under  the  policy,  in  case  of  loss,  to 
the  extent  of  his  interest.  And  this  is  so  whether  the 
policy  is  issued  to  and  made  payal»le  to  liim,  or  it  be  taken 
in  name  of  mortgagor  and  no  reference  is  made  in  it  to  the 
mortgagee,  for  equity  would  in  such  case  presume  policy 
was  obtained  in  pursuance  of  the  agreement  in  the  mort- 
gage, and  would  so  treat  it.  Duulop  v.  Avery,  23  Han, 
509.    1881. 

See  Alienation,  §  12,  60.  Assignment,  15,  17.  Cancellation,  18,  14,  15. 
Contribution,  15.  17.  Examination,  2.  Evidence,  27.  Interest  in  Policy,  1, 
9,  18,  26.  Mutual  Company,  71,  07,  108,  144.  Other  Insurance,  47,  49. 
Proofs  of  Loss,  74,  75,  82.  Kenewal,  4.  Subrogation,  4.  Who  May  Sue,  1, 
6,  8,  11, 15,  17,  18. 


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MUTUAL  COMPANIES. 

§  1.  When  mutual  company  with  knowledge  of  the 
existence  of  other  insurance  makes  and  collects  au  assess- 
ment upon  a  certain  policy,  it  operates  as  a  waiver  of  such 
defense.  Lycoming  Mutual  Ins.  Co.  v.  Stocklomn,  3 
Grant  Cas.  207.     1856. 

§  2.  Assured  in  mutual  company  has  right  to  look  to 
entire  capital — that  is,  whole  amount  of  premium  notes 
taken — for  his  indemnity,  instead  of  being  limited  to  the 
capital  of  that  class  of  risks  in  which  his  policy  may  have 
been  placed.  Fitzpatrick  v.  Troy  Ins.  Co.  5  Biss.  48. 
1857. 

§  3.  When  the  original  notice  of  assessment  is  lost 
and  it  appears  that  but  one  form  was  used  for  all  such 
notices,  proof  that  one  of  that  form  was  sent  is  competent 
mode  of  pioof.  Fogle  v.  Lycoming  Mutual  Ins.  Co.  3  Grant 
Cas.  77.     1860. 


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MUTUAL  COMPANIES. 


§  4.  The  fact  that  a  loss  has  been  paid  with  borrowed 
money  does  not  prevent  subsequent  assessment  for  the 
same  loss.    Tobey  v.  Russell,  9  R.  I.  58.     1868. 

§  5.  When  receiver  is  authorized  by  statute  to  make 
an  allowance  for  equitable  claims,  the  mere  fact  of  an  as- 
sessment being  excessive  does  not  render  it  void.  Tobey 
V.  Russell,  9  R.  I.  58.     1868. 

§  6.  Premium  note  may  be  made  payable  "  at  such 
times  as  the  directors  may  require,"  and  becomes  due  and 
payable  upon  such  requirement.  Gaytes  v.  Hibbard,  5 
Biss.  99.     1869. 

§  7.  When  mutual  policy  has  been  absolutely  assigned 
with  consent  of  the  company,  the  original  assured  capiiot 
maintain  an  action  in  his  own  name.  Fitzgerald  v.  Gore 
Mut.  Fire  Ins.  Co.  30  Up.  Can.  Q.  B.  97.     1870. 

§  8.  Assured  taking  policy  of  a  mutual  company,  au- 
thorized to  transact  business  as  a  stock  company,  and  pay. 
ing  premium  in  cash,  cannot  be  held  to  be  a  member. 
Illinois  Fire  Ins.  Co.  v.  Stanton,  57  111.  354.  1870.  s.  p. 
When  premium  is  paid  part  cash  and  part  note.  Farmers' 
Ins.  Co.  V.  Smith,  63  111.  188.     1872. 

§  9.  Insolvency  of  company  is  no  defense  to  an  action 
on  a  note  given  for  a  premium.  Gary  v.  Nagel,  2  Biss. 
244.     1870. 

§  10.  Semhle^  assignee  of  a  mutual  policy  does  not  be- 
come a  member  of  the  company  so  as  to  entitle  him  to 
give  notice  of  loss  and  furnish  the  particular  account  re- 
quired by  the  conditions  of  the  policy.  Fitzfijernld  v.  Gore 
Mut.  Fire  Ins.  Co.  30  Up.  Can.  Q.  B.  97.     1870. 

§  11.  The  non-payment  of  premium  given  by  the  orig- 
inal insured,  who  has  assigned  a  policy  to  a  third  part} 
with  the  consent  of  the  company,  cannot  be  set  up  as  a 
v^lefense  to  an  action  upon  the  policy  brought  by  the  as- 
signee. Statute  voids  the  policy  only  in  the  hands  of  the 
person  in  default.  Storms  v.  Canada  Mut.  Ins.  Co.  22 
Up.  Can.  C.  P.  75.     1871. 


MUTUAL  COMPANIES. 


185 


§  12.  A  mutual  company  must  aver  compliance  with 
certain  steps  required  to  be  taken  by  statute  in  reference 
to  notice  of  assessment  before  a  plea  founded  upon  non- 
payment can  be  made  available.  Crowley  v.  Agricultural 
Mat.  Ins.  Co.  21  Up.  Can.  C.  P.  567.     1871. 

§  13.  An  assessment  upon  an  alleged  lost  note  can- 
not be  sustained  without  proof  of  its  having  existed  at 
some  time  unpaid  and  uncanceled.  Ke  Slater  Mut.  Fire 
Ins.  Co.  10  R.  I.  42.     1871. 

§  14.  An  assessment  cannot  be  avoided  by  the  fact 
thai  it  was  made  upon  and  included  parties  who  were  not 
liable.    Re  Slater  Mut.  Fire  Ins.  Co.  10  R.  I.  42.     1871. 

§  15.  "When  premium  note  provides  that  it  is  due 
and  payable  at  such  times  and  by  such  installments  as 
might  be  assessed,  the  statute  of  limitations  does  not 
begin  to  run  against  it  until  an  assessment  has  been  made 
thereon.     Re  Slater  Mut.  Fire  Ins.  Co.  10  R.  I.  42.     1871. 

§  16.  Insolvency  of  company  no  defense  to  an  action 
upon  premium  note.    Graff  v.  Simmons,  58  111.  440.    1871. 

§  17.  A  receiver  of  a  mutual  company  must  comply 
with  the  staiute  in  making  an  assessment  on  the  premium 
notes.  Embree  v.  Shideler,  36  Ind.  423.  1871.  s.  p. 
Manlove  V.  Burger,  38  Ind.  211.  1871.  Manlove  v.  Nay- 
lor,  Id.  424.  1871.  Whitman  v.  Mason,  40  Ind.  189. 
1872. 

§  18.  The  Indiana  statute  (1  G,  &  H.  396)  in  regard 
to  personal  liability  of  directors  of  mutual  companies,  is 
penal  in  its  nature  and  must  be  strictly  construed ;  and 
such  liability  can  only  exist  when  a  judgment  has  been 
recovered  upon  a  policy,  and  not  upon  a  note  taken  in  set- 
tlement of  a  loss  on  exchange  and  surrender  of  a  policy. 
Raber  v.  Jones,  40  Ind.  436.'     1872. 

§  19.  A  premium  note  given  to  a  foreign  insurance 
company  which  has  not  complied  with  the  laws  precedent 
to  its  admission  to  the  State,  is  void.  Hoffman  v.  Banks, 
41  Ind.  1.     1872. 


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MUTUAL  C0MPAK1E8. 


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§  20.  A  condition  that  company  shall  not  be  liable 
for  a  loss  occurring  when  note  given  for  the  premium  is 
due  and  unpaid,  is  valid  and  binding.  Its  force  and  effect 
cannot  be  avoided  by  showing  that  note  was  taken  in  pay. 
ment  for  cash  premium,  and  that  further  credit  was  stipu- 
lated by  concluding  words  of  the  note,  "  with  interest  at 
ten  ppr  cent,  after  due."  Watrous  v.  Miss.  Valley  Ins.  Co. 
35  Iowa,  582.     1872. 

§  21.  Assessment  with  knowledge  of  forfeiture  waives 
it.     McKenzie  v.  Fire  Ins.  Co.  9  Heiskell,  261.     1872. 

§  22.  A  mutual  insurance  company  which  in  addi- 
tion to  its  usual  business  issued  policies  both  the  pre- 
mium, and  loss,  if  any,  payable  in  gold,  is  not  bound  to 
pay  dividends  upon  such  policies  in  gold.  Luling  v. 
Atlantic  Mutual  Ins.  Co.  51  N.  Y.  207.    1872. 

§  23.  The  form  of  a  note  given  to  a  mutual  insurance 
company  is  not  conclusive ;  the  question  whether  it  was 
a  premium  or  stock  note  may  be  established  by  circum- 
stances attending  its  making  and  deliveiy  and  is  a  ques- 
tion of  fact  for  the  jury.  Jackson  v.  Van  Slyke,  52  N.  Y. 
645.     1873. 

§  24.  The  liability  of  member  of  a  mutual  company 
upon  premium  note  cannot  be  extended  beyond  the  orig- 
inal limit  by  any  amalgamation  of  the  company  with 
another,  or  by  any  dealings  or  contract  between  them  to 
which  he  is  not  a  party.  Beaver  Ins.  Co.  v.  Trimble,  23 
Up.  Can.  C.  P.  252.     1873. 

§  25.  Wiien  policy  states  that  it  is  issued  in  consid- 
eration of  a  note  made  by  the  assured  the  acceptance  of  a 
note  signed  by  another,  waives  right  of  the  company  to  a 
note  signed  by  the  former.  When  policy  of  a  mutual 
company  provides  that  a  failure  to  pay  premium  note 
shall  defeat  the  insurance,  a  waiver  of  such  clause  to  be 
operative,  must  be  supported  by  an  agreement  founded 
on  a  valuable  consideration,  or  the  act  relied  on  as  a 
waiver  must  be  such  as  to  estop  the  party  from  insisting 
on  the  performance  of  the  contract  or  forfeiture  of  the 


MUTUAL  COMPANIES. 


187 


condition.    Muhleman  v.  National  Ins.  Co.  6  W.  Va.  508. 
1873. 

§  26.  In  absence  of  proof  of  order  or  requirement  by- 
directors  for  payment,  and  that  losses  and  expenses  have 
occurred  in  recovery  can  be  had  on  a  premium  note. 
Wain^T  V.  Beem,  36  Iowa,  385.     1873. 

§  27.  Notwithstanding  mutual  company  may  wcive 
condition  as  to  prepayment  of  premium,  such  waiver  does 
not  extend  to  a  stipulation  in  the  contract  providing  that 
company  shall  not  be  liable  for  loss  occurring  when  note 
18  unpaid  and  past  due.  Ferebee  v.  N.  C.  Mutual  Home 
Ins.  Co.  68  N.  C.  11.    1873. 

§  28.  A  premium  note  may  be  compromised  by  agent 
of  a  mutual  company  after  filing  petition  for  dissolution 
and  before  publication  of  notice  of  appointment  of  re- 
ceiver. The  word  "transfers"  in  the  provisions  of  the 
Statute  2  R.  S.  (N.  Y.)  469,  sec.  71,  which  declares  void 
all  transfers,  &c.,  made  after  filing  of  a  petition  for  disso- 
lution does  not  apply  to  such  a  case.  Sands  v.  Hill,  55 
N.Y.  18.    1873. 

§  29.  Neither  insolvency  of  the  corporation,  nor  can- 
cellation of  its  policies  will  deprive  the  company  of  the 
right,  or  relieve  its  officers  of  the  duty,  to  assess,  upon 
those  who  were  members,  all  losses  that  occurred  while 
they  were  members.  Commonwealth  v.  Massachusetts 
Ins!  Co.  112  Mass.  116.     1873. 

§  30.  The  liability  to  assessment  at  any  time,  within  the 
limit  fixed  by  the  statute,  is  measured  only  by  the  amount 
of  the  losses  for  which  the  company  is  then  responsible. 
It  is  not  apportionable  according  to  the  ratio  ot  time  of 
the  expired  and  the  unexpired  term  of  the  policy.  In 
casH  of  insufficiency  "  a  just  average  shall  be  made  to  the 
Bufferers,"  each  one  receiving  a  share  of  the  fund  in  pro- 
portion to  the  amount  of  his  loss.  This  rule  does  not 
permit  a  setoff  between  the  company  and  those  who 
liave  claims  for  losses  upon  which  they  are  entitled  to  a 
distributive  share  of   the  proceeds  of   the  assessment. 


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MUTUAL  COMPANIES. 


Upon  the  same  grounds  the  fund  thus  pledged  to  make 
good  losses  by  fire  cannot  be  reduced  by  allowing  claims 
of  this  nature,  in  favor  of  other  members  who  nave  not 
suffered  loss,  to  participate  in  the  distribution,  and  there- 
by defeat  or  impair  the  promised  indemnity.  Common, 
wealth  V.  Massachusetts  Ins.  Co  112  Mass.  116.     1873. 


§31. 


Assignees  of  a  policy,  who  have  been  substi- 
tuteti  to  all  the  rights  of  the  original  assured,  With  the 
assent  of  the  company  thereby  become  members,  and  are 
liable  to  assessment.  Commonwealth  v.  Massachusetts 
Ins.  Co.  112  Mass.  116.     1873. 

§  32.  When  the  company  has  become  insolvent  and 
placed  in  hands  of  receiver,  assured  is  entitled  to  have 
the  amount  due  from  him  to  the  company  applied  in  pay- 
raent  of  a  loss  due  to  him  under  its  policy,  and  to  prove 
against  the  assets  of  the  company  for  the  balance  if  any. 
Commonwealth  v.  Shoe  and  Leather  Ins.  Co.  112  Mass. 
131.     1873. 

§  33.  Under  Gen.  Sts.  c.  58,  sects.  48,  54  (Mass.), 
the  deposit  notes  should  first  be  exhausted  before  resort- 
ing to  the  further  liability  imposed  by  law  upon  the 
policyholders  as  members  of  the  corporation.  Common- 
wealth V.  Monitor  Ins.  Co.  112  Mass.  150.     1873. 

§  34.  Under  Gen.  Sts.  c.  58,  sect.  54  (Mass.),  cancel- 
lation of  policy  does  not  relieve  holder  from  liability 
to  assessment  for  losses  occurring  while  he  was  a  mem- 
ber, if  made  within  two  years.  Commonwealth  v.  Me- 
chanics' Ins.  Co.  112  Mass.  192.     1873. 

§  85.  An  assessment  cannot  be  made  for  purpose  of 
repaying  unearned  premiums.  Commonwealth  v.  Me- 
chanics' Ins.  Co.  112  Mass.  192.     1873. 

§  36.  In  an  action  upon  a  premium  note  the  declara- 
tion setting  forth  its  general  tenor  and  effect,  the  fact  that 
it  is  in  the  German  language  will  not  constitute  a  vari- 
ance. Williams  v.  German  Mut.  Fire  Ins.  Co.  68  111.  387. 
1873. 


MUTUAL  COMPANIES. 


189 


§  37.  By-law  of  mutual  company  provided  that  not 
more  than  three-fourths  of  the  actual  cash  value  should 
be  insured.  Subsequently  it  was  agreed  "  to  avoid  all 
doubt  and  difficulty  in  case  any  loss  should  occur  to  our 
respective  properties  by  fire,  we  will  only  claim  and  re- 
ceive three-fourths  of  the  amount  of  the  actual  loss,  pro- 
vided three-fourths  of  the  amount  as  aforesaid  does  not 
amount  to  more  than  three-fourths  of  the  sura  insured." 
Three-fourths  of  the  actual  loss  amounted  to  more  than 
three-fourths  of  the  sum  insured."  Held^  the  agreement 
to  be  inapplicable  and  that  the  assured  was  entitled  to 
recover  the  whole  sum  insured  which  was  three-fourths  of 
the  actual  value,  and  that  the  agreement  was  not  intended 
to  reach  the  case  of  a  total  loss  already  provided  for  suffi- 
ciently by  the  by-law  first  above  mentioned.  Farmers* 
Mutual  Ins.  Co.  v.  Graybill,  74  Pa.  17.    1873. 

§  38.  The  members  of  a  mutual  company  are  pre- 
sumed to  know  the  conditions  and  by-laws  affecting  insur- 
ance. Lattomus  v.  Farmers'  Mut.  Ins.  Co.  3  Houston 
(Del.),  404.     1873. 

§  39.  When  the  by-law  of  a  mutual  company  requires 
that  the  application  for  insurance  shall  be  signed  by  the 
applicant,  the  mere  fact  of  his  signing  the  application 
gives  the  company  the  right  to  assume  the  truth  of  his 
representation.  Va.  Buren  v.  St.  Joseph  Ins.  Co.  28  Mich. 
398.     1873. 

§  40.  Secretary  leaving  a  written  or  verbal  notice  of 
meeting  for  a  director  at  his  place  of  business,  with  his 
brother,  is  sufficient  notice  to  sustain  the  action  of  the 
meeting  in  such  directors  absence  in  making  an  assess- 
ment. By-laws  requiied  such  notice  "  to  be  given  by  mail, 
or  in  other  ways."  Williams  v.  German  Mut.  Fire  Ins. 
Co.  08  111.  387.     1873. 

§  41.  Member  of  mutual  company  is  liable  only  for 
proportion  of  loss  and  expenses  accruing  while  his  policy 
18  in  force.  Greene  v.  Beaver  &>  Toronto  Fire  Ins.  Co.  34 
Up.  Can.  Q.  B.  78.    1873. 


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MUTUAL  COMPANIES. 


§  42.  Assured  held  an  interim  receipt  which  provided 
that  the  company  "  shall  have  power  to  cancel  tliis  con- 
tract at  any  time  within  thirty  days  from  its  date,  by  caus- 
ing a  notice  to  that  eflfect  to  be  mailed  to  the  applicant," 
at  a  certain  address.  Company  mailed  to  the  applicant 
such  notice  within  thirty  days,  but  it  was  not  received  in 
time  for  delivery  at  the  post  office  to  which  it  was  ad- 
dressed until  after  the  fire.  Held,  that  the  mailing  of  the 
notice  was  not  sufficient  to  cancel  the  insurance.  Tough 
V.  Provincial  Ins.  Co.  20  L.  C.  Jurist,  168.  1874.  Revg 
37  L.  C.  Jurist,  305.  s.  p.  Goodwin  v.  Lancashire  Fire 
Ina  Co.  18  L.  C.  Jurist,  1.     1873. 

§  43.  Where  a  mutual  company  issue  policies  for  cash 
premiums,  with  which  losses  are  paid,  these  facts  must  he 
taken  into  consideration  and  allowance  made  therefor  in 
making  assessment  upon  premium  notes.  Sands  v.  Graves, 
r)8  N.  Y.  94.     1874. 

§  44.  The  provisions  of  a  statute  requiring  publica- 
tion of  notice  of  assessment  upon  premium  notes,  are  not 
merely  directoiy;  compliance  therewith  must  be  shown. 
Sands  V.  Graves,  58  N.  Y.  94.     1874. 

§  45.  A  valid  assessment  upon  maker  of  premium 
note  must  be  based  upon  an  actual  prior  examination  and 
determination  of  amount  of  losses  and  expenses,  and  whole 
amount  of  notes  liable  to  assessment,  and  the  omission  can- 
not be  supplied  by  proof  upon  a  trial  showing  that  assess- 
ment would  have  been  proper.  Sands  v.  Graves,  58  N.  Y. 
94.     1874. 

§  46.  A  note  given  for  premium  is  not  a  deposit  note 
under  H.  S.  ch.  49,  sec.  2G  (Me.).  Union  Ins.  Co.  v.  Green- 
leaf,  64  Me.  123.     1874. 

§  47.  The  negotiability  of  a  premium  note  is  not  takon 
away  by  indorsement  upon  its  face  "  on  policy  No.  33,38(5 ;" 
although  the  policy  contains  a  provision  for  set-off  of  not<'8 
due  company  in  case  of  loss.  Union  Ins.  Co.  v.  Greenleaf, 
64  Me.  123.     1874. 


MUTUAL  COMPANIES. 


191 


§  48.  In  action  brought  by  receiver  upon  premium 
note,  declaration  must  show  that  court  has  examined  and 
determined  upon  the  validity  of  the  claims  against  the 
company  for  p:  'ment  of  which  assessment  is  made.  Tlie 
amount  of  claims  which  court  will  allow,  together  with 
any  indebtedness  previously  allowed  by  the  directors,  as 
shown  by  their  books,  must  be  ascertained  before  an  as- 
sessment can  be  made  to  pay  such  indebtedness.  A  mem- 
ber of  the  company  is  liable  only  to  assessment  for  losses 
occurring  while  his  policy  is  in  force.  Downs  v.  Ham- 
mond, 47  Ind.  131.  1874.  s.  p.  Embree  v.  Shideler,  36 
Id.  423.     1871. 

§  49.  The  application  for  insurance  in  mutual  com- 
pany was  for  insurance  "on  hay  in  the  stack  and  in  the 
field,"  and  the  policy  I'ead  "  on  his  hay  in  stack  within 
fifty  feet  of  stable."  Assured  claimed  to  rescind  the  con- 
tract of  insurance  as  soon  as  the  error  was  discovered.  On 
a  suit  upon  the  note,  Held.,  that  the  misdescription  was 
immaterial ;  that  the  application  being  made  a  part  of  the 
policy,  both  must  be  construed  together,  and  that  hence 
the  right  of  rescision  did  not  exist.  Edwards  v.  Farmers' 
Ins.  Co.  74  111.  84.     1874. 

§  50.  To  make  an  assessment  binding  company  must 
show  a  state  of  facts  which  authorizes  the  assessment  to 
be  made.   Planters'  Ins.  Co.  v.  Comfort,  50  Miss.  G62.   1874. 

§  .51.  Sale  of  property,  taking  back  a  mortgage  for 
the  whole  of  the  purchase-money,  is  such  an  alienation  as 
to  render  the  insurance  void,  and  relieve  maker  of  note 
from  liability  to  assessment  for  losses  happening  after- 
wards.    Miner  v.  Judson,  5  T.  <fe  C.  46.     1874. 

§  52.  Terms  of  a  charter  of  a  mutual  company  must 
be  strictly  complied  with  to  effect  a  cancellation  of  policy. 
Landis  v.  Home  Mut.  Ins.  Co.  56  Mo.  591.     1874. 

§  53.  Charter  of  mutual  company  provided  that  the 
insured  party  should  permit  his  claim  for  the  loss  to  be 
adjusted,  and  that  if  not  satisfied  with  the  adjustment  the 
question  may  be  submitted  to  referees,  or  he  may  bring 


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an  action  against  the  company  at  the  first  court  to  be  held 
in  county  specified,  and  not  afterwards.  Held^  that  the 
limitation  applied  only  to  cases  where  the  party  is  not 
satisfied  with  the  adjustment.  It  has  no  application  at  all 
where  the  company  claims  a  total  exemption.  In  such 
case  the  assured  may  resort  to  his  remedy  under  the  gen- 
eral law,  and  is  only  barred  by  the  general  statute  of  lim- 
itations.   Landis  v.  Home  Mut.  Ins.  Co.  66  Mo.  591.    1874. 

§  54.  When  a  premium  note  in  advance  for  the  secur- 
ity of  dealers  in  given  at  commencement  of  business  and 
renewed  at  maturity,  maker  is  liable  to  receiver  of  com- 
pany in  same  manner  as  if  the  occasion  for  its  use  had 
arisen  during  the  existence  of  the  original  note.  Howard 
V.  Hinckley  Co.  64  Me.  93.  1874.  And  see  in  case  of 
partners.    Maine  Mut.  Ins.  Co.  v.  Blunt,  64  Me.  95.    1874. 

§  55.  An  agent  of  company  authorized  to  solicit  risks 
obtained  a  policy  for  the  assured,  and  executed  and  depos- 
ited a  premium  note  in  his  name.  Policy  recited  the  giv- 
ing of  the  note.  Assured  accepted  and  retained  the  policy 
without  knowledge  of  the  giving  of  the  note.  Ileld^  that 
by  the  acceptance  and  retention  of  the  policy  assured 
adopted  and  ratified  the  act  of  the  agent,  and  was  liable 
on  the  note.  Monitor  Mut.  Ins.  Co.  v.  Buffum,  115  Mass. 
343.     1874. 

§  56.  When  by  the  charter  of  a  mutual  company  de- 
posit notes  are  made  and  termed  "  the  absolute  funds  of 
the  company,"  liable  and  held  pledged  to  pay  expenses  and 
losses  and  that  in  the  event  of  such  absolute  funds  being 
consumed,  then  each  member  should  be  liable  to  pay  a  cer- 
tain assessment,  the  company  is  not  obliged  to  show  that 
an  assessment  has  been  duly  made  to  entitle  it  to  recover 
upon  sucii  a  deposit  note  which  is  subject  to  be  collected 
at  any  time  in  the  discretion  and  under  the  direction  of 
the  directors.     Ins.  Co.  v.  Moore,  55  N.  II.  48.     1874. 

§  57.  Member  of  mutual  company  is  not  liable  to  as- 
sessment when  his  policy  has  been  canceled  by  effect  of  a 
written  notice  from  the  secretary.  Columbia  Ins.  Co.  v. 
Masonheimer,  76  Pa.  138.     1874. 


MUTUAL  COMPANIES. 


193 


I  58.  The  form  of  a  note  given  to  a  mutual  company 
is  not  conclusive  upon  the  question  of  its  having  been 
given  as  a  stock  or  capital  note.  Such  question  is  open  to 
inquiry.    Sands  v.  Isaacson,  56  N.  Y.  662.     1874. 

§  59.  The  legal  right  to  assess  member  of  a  mutual 
company  must  be  clear  on  the  face  of  the  declaration, 
otherwise  the  latter  will  ho  held  bad  on  demurrer.  Co- 
lumbia Fire  Ins.  Co.  v.  Kenyon,  8  Vroom,  N.  J.  L.  R.  33. 
1874. 

§  60.  Loss  must  occur  during  continuance  of  the  pol- 
icy to  render  assured  liable  to  assessment.  Columbia  Fire 
Ins.  Co.  v.  Bolton,  2  Pearson,  222.     ISYf). 

§  61.  The  statute  of  limitations  does  not  begin  to  run 
in  case  of  a  deposit  note  until  the  laying  of  an  assessment. 
Bigelow  V.  Libby,  117  Mass.  359.     1875. 

§  62.  Misrepresentation  of  an  agent  cannot  be  set  up 
in  an  action  upon  a  premium  note  unless  it  is  also  averred 
that  he  had  authority  from  the  company  to  make  the  state- 
ment. Pennsylvania  Central  Ins.  Co.  v.  Kinley,  2  Pearson, 
229.     1875. 

§  63.  Acceptance  of  the  full  amount  of  the  premium 
after  default  and  notice  of  a  loss  operates  as  a  waiver  of 
condition  in  the  policy  suspending  liability  during  the  time 
of  such  defiiult.  Joliffe  v.  Madison  Mutual  Ins.  Co.  39 
Wis.  111.     1875. 

§  64.  A  mere  statement  to  the  assured,  or  notice  that 
unless  assessment  was  paid  by  a  specified  future  day  that 
the  policy  would  be  annulled  on  that  day,  is  a  mere  threat 
and  does  not  of  itself  prevent  company  from  making  fur- 
ther assessment  on  a  premium  note  given  by  the  assured. 
Joliffe  V.  Madison  Mutual  Ins.  Co.  39  Wis.  111.     1875. 

§  65.     When  mutual  company  is  authorized  to  issue 

its  policies  for  cash  premiums  to  be  paid  into  the  common 

treasury,  a  member  who  thereafter  becomes  such  on  the 

mutual  plan  is  liable  to  be  assessed  for  losses  occurring 

Vol.  II.— 1  a 


i 


^li';]'::. 


i  ''I 


194 


MUTUAL  COMPANIES. 


I' 


under  the   cash   policies.    Hummers   App.   78   Pa.  820 
1875. 

§  66.  A  stockholder  in  an  insolv^ent  company  cannot 
reduce  his  liability  upon  a  stock  note,  by  setting  off  amount 
due  under  an  adjusted  policy.  Jenkins  v.  Armour,  6  Biss 
312.     1875. 

§  67.  Condition  of  insurance  in  mutual  company  pro- 
vided that  whenever  an  assessment  shall  have  been  made 
upon  the  premium  notes  and  the  same  is  not  paid  within 
30  days  after  being  demanded,  the  policy  should  be  null 
and  void  until  the  said  assessment  be  paid,  and  that  the 
directors  should  retain  such  premium  notes  and  collect 
thereon  such  sum  or  sums  so  assessed.  Held^  that  the  effect 
of  such  condition  was  merely  to  suspend  the  benefit  of  the 
policy  after  30  days  default  in  payment  until  payment  of 
the  assessment  is  made  either  voluntarily  or  involuntarily; 
the  company  by  the  same  section  being  authorized  to  re- 
tain a  premium  note  to  enforce  collection.  Hummel's 
App.  78  Pa.  320.     1875. 

§  68.  It  is  not  necessary  to  validity  of  an  assessment 
that  the  company  should  have  actual  and  accurate  knowl- 
edge of  the  amount  of  claims  against  it.  Such  liability 
may  be  estimated.     Ilummel's  App.  78  Pa.  320.     1875. 

§  69.  Policy  provided  that  if  assessment  was  not  paid 
within  ten  days  after  notice  in  writing  has  been  left  at 
assured's  last  and  usual  place  of  abode  or  business,  it 
should  be  suspended  until  the  same  was  paid.  Also, 
that  if  assured  should  refuse  to  pay  any  assessment  di- 
rectors may  terminate  the  risk  by  giving  notice,  (fee. 
Assessment  was  made  on  all  policies  on  account  of  the 
Boston  fire  in  1872.  Plaintiff  received  notice  of  the  assess- 
ment in  due  course  of  mail  and  also  of  resolution  of  direc- 
tors that  the  policies  of  all  holders  should  be  canceled  and 
notes  canceled  and  returned  if  assessment  was  not  paid  in 
thirty  days.  Plaintiff  received  notice  February  6,  1873, 
but  did  not  pay  the  assessment ;  the  company  did  no  fur- 
ther act  in  regard  to  his  policy;  and  July  4, 1873,  proper- 
ty was  destroyed  by  fire.     Plaintiff  contended  that  policy 


MUTUAL  COMPANIES. 


195 


remained  in  force  because  it  was  not  actually  canceled  ac- 
cording to  resolution  of  the  directors ;  also,  that  notice  was 
not  given  as  required  by  the  by-law ;  and  that  he  was  ex- 
cused from  paying  the  assessment  because  the  agent  owed 
him  on  account  of  an  old  policy.  Ileld^  that  the  insurance 
was  suspended  by  the  force  of  the  first  by-law  above- 
mentioned,  and  this  was  not  affected  by  vote  of  the  direc- 
tors; that  plaintiff  having  received  notice  in  due  time  by 
mail  and  acted  upon  it  must  be  deemed  to  have  waived 
by-law  as  to  notice,  and  that  the  excuse  for  non-payment  of 
the  assessment  was  not  suflScient.  Hollister  v.  Quincy 
Ins.  Co.  118  Mass.  478.     1875. 

§  70.  In  a  mutual  company  when  losses  occur  which 
absorb  the  absolute  funds,  and  require  an  assessment 
upon  the  contingent  liability  of  the  members,  insured  who 
have  sustained  losses  are  not  entitled  to  interest  thereon. 
Commonwealth  v.  Mass.  Ins.  Co.  119  Mass.  45.     1875. 

§  71.  When  a  purchaser  gives  a  mortgage  for  a  part 
of  the  considei'ation  and  assigns  to  the  mortgagee  a  policy 
of  insurance  in  a  mutual  company  with  assent  of  the  latter, 
the  mortgagor  remains  as  before  a  member  of  the  com- 
pany and  the  party  liable  to  assessment.  Cummings  v.  Hil- 
dreth,  117  Mass.  309.     1875. 

§  72.  When  contract  of  a  mutual  company  provides 
that  no  person  who  shall  have  claimed  the  homestead  ex- 
emptioii  should  be  a  member  of  the  company,  that  such 
exemption  is  claimed  by  one  of  the  members  of  a  partner- 
ship insured  does  not  affect  validity  of  the  policy.  West 
Rockingham  Fire  Ins.  Co.  v.  Sheets,  2G  Grat.  854.     1875. 

§  73.  An  assignee  of  a  mutual  policy  with  consent  of 
the  company  becomes  a  member  and  liable  to  assessments. 
Cummings  v.  Hiklreth,  117  Mass.  309.     1875. 

§  74,  Mutual  policy  contained  conditions  as  follows: 
"Assignments  of  ])olicies  must  be  made  within  ten  days 
after  sale  of  propertv,  and  this  policy  sent  to  the  office  of 
the  company  forthwith  for  its  consent,  with  fifty  cents  re- 
cording fee,  and  a  new  installment  note  signed  by  the  as- 


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106 


MUTUAL  COMPANIES. 


fsignee.  Consent  will  then  be  given  to  the  assignment." 
Property  having  been  sold  l)y  tiie  assured,  he  assigned  the 
policy  with  consent  of  defendant's  agent,  by  his  direction, 
the  agent  having  full  knowledge  of  all  the  facts  of  the 
transfer.  The  agent  promised  to  forward  the  policy  to  the 
secretary  of  the  company,  but  failed  to  do  so.  If  eld,  that 
there  was  not  an  assignment  of  the  policy  approved  by 
the  company  as  provided  by  the  conditions  of  the  policy; 
that  the  local  agent  was  not  authorized  to  act  for  the  com- 
pany in  the  approval  of  the  transfer.  American  Ins.  Co. 
V.  Gallagher,  50  Ind.  209.     1875. 

§  r5.  Claims  for  losses  due  from  company  cannot  be 
set  oif  against  notes  given  for  capital  stock.  But  when 
money  is  deposited  with  treasurer  of  company  as  a  banker 
and  not  as  treasurer,  his  losses  may  be  set  otf  against  such 
deposit.  Scammon  v.  Kimball,  5  Ins.  L.  J.  2rtG.  1875. 
U.  S.  Sup.  Ct. 

§  76.  In  a  mutual  office  a  member  is  not  only  entitled 
to  recover  for  a  loss  during  the  limit  of  his  policy,  but  he 
is  also  liable  for  his  proper  share  of  contribution  to  all 
others  who  lose  during  the  term  of  his  policy.  The  re- 
ceipt of  a  total  loss  by  the  assured,  and  surrender  of  the 
policy,  with  no  deduction  on  account  of  future  losses,  the 
premium  note  being  retained  by  the  company,  does  not 
terminate  the  liability  of  the  assured  upon  the  note.  Boot 
&  Shoe  Mfg.  Ins.  Co.  v.  Melrose  Society,  117  Mass.  199. 
1875. 

§  77.  An  alienation  of  the  property  insured,  which, 
under  the  terms  of  the  policy  may  terminate  the  insurance, 
does  not  release  the  holder  from  his  responsibility  as  a 
member  and  liability  to  assessment.  Curaings  v.  Sawyer, 
117  Mass.  30.     1875. 

§  78.  The  funds  in  hands  of  a  receiver  of  mutual  com- 
pany are  not  liable  to  pay  any  losses  which  might  occur 
after  the  judicial  sequestration  of  the  property  of  the  com- 
pany, and  no  part  of  such  fund  can  be  retained  for  pur- 
pose of  meeting  such  losses.  Commonwealth  v.  Mass.  Ins. 
Co.  119  Mass.  45.     1875. 


MUTUAL  COMPANIES. 


m 


§  79.  When  there  ia  a  surplus  fund  in  Lands*  of  receiver, 
resu'ltino-  from  fact  that  the  directors  made  an  assessment 
larger  than  was  necessary  for  the  purposes  for  which  it 
was  authorized,  such  money  cannot  be  applied  for  purpose 
of  paying  value  of  unexpii-ed  policies  or  unearned  pre- 
miums, but  should  be  repaid  to  the  members.  Common- 
wealth V.  Mass.  Ins.  Co.  119  Mass.  45.     1875. 

§  80.  Liability  of  mutual  company  is  absolutely  sus- 
pended by  the  failure  of  the  assured  to  pay  note  when 
due.    Gorton  v.  Dodge  Comity  Mut.  Ins.  Co.  89  Wis.  121. 

1875. 

§  81.  Condition  relieving  company  from  liability  while 
the  assured  is  in  default  in  respect  to  payment  of  pre- 
mium is  valid  and  will  be  enforced.  Joliffe  v.  Madison 
Mut.  Ins.  Co.  39  Wis.  111.  1875.  s.  p.  Cranford  Comity 
Mut.  Ins.  Co.  V.  Cochran,  8  Ins.  L.  J.  549.     1879.     Pa. 

§  82.  Policy  and  note  toj^etlier  form  the  contract. 
Shultz  V.  Hawkeye  Ins.  Co.  42  iowa,  239.     1875. 

§  83.  A  condition  that  "  if  note  is  not  paid  within 
sixty  days  after  its  maturity,  and  suit  should  be  brought 
thereon  after  such  time,  the  commencement  of  such  action 
should  operate  as  an  absolute  cancellation  of  the  policy, 
and  the  whole  amount  of  the  note  should  be  deemed 
earned,  due  and  payable,  and  that  the  collection  of  the 
note  by  legal  proceedings  shouhl  not  operate  as  a  waiver 
or  have  the  effect  to  revive  the  policy,"  is  valid  and  bind- 
ing. Shultz  V.  Hawkeye  Ins.  Co.  42  Iowa,  239.  1875. 
s.  p.  Shakey  v.  Id.  44  Iowa,  540.     1876. 

§  84.  Judgment  of  bankruptcy  court  assessing  pre- 
mium notes  does  not  prevent  the  makers  from  setting  up 
defenses  as  to  their  validity.     Lamb  v.  Lamb,  6  Biss.  420. 

1875. 

§  85.  Company  was  authorized  l)y  its  charter,  "as 
additional  security  to  its  dealers,  to  receive  notes  for  pre- 
mimns  in  advance.  As  to  third  parties,  they  shall  be 
deemed  the  absolute  property  of  the  company,  and  may 
he  used  for  any  purpose  connected  with  its  business.     As 


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1S)8 


MUTUAL  COMPANIES. 


W  I 


between  tlie  makers  and  tlie  company  they  shall  be  liable 
merely  to  extent  of  premiums  written,  and  for  losses  and 
liabilities  after  cash  capital  and  other  resources  shall  have 
been  first  exhausted."  Such  notes  were  also  entitled  to 
share  in  the  profits.  JIdd,  that  makers  of  such  notes  did 
not  occupy  relation  of  sureties  to  the  company,  but  they 
did  to  its  creditors,  and  that  they  were  not  discharged  by 
any  change  lawfully  made  ])y  company,  although  eftect 
might  be  to  decrease  its  assets.  The  word  "exhausted" 
did  not  require  a  collection  and  sale  and  an  actual  appli- 
cation of  all  the  other  assets  before  resort  could  be  had  to 
the  security  notes.    Osgood  v.  Toole,  60  N.  Y.  475.    1875. 


§  86.     Whether  a  note  is  given  as  a  subscription  m 
for  better  security  of  those  concerned,"  or  as  a  premii 


ote 
premium 
note  in  advance  for  an  open  policy,  is  properly  a  question 
of  fact  to  be  determined  by  juiy.  In  latter  case  defend- 
ant's liability  was,  by  company's  charter,  limited  to  the 
earned  premium.  Maine  Ins.  Co.  v.  Farrar,  6()  Me.  133. 
1876.    s.  p.  Id.  Co.  V.  Stockwell,  67  Me.  382.     1877. 

§  87.  A  condition  providing  that  company  shall  not 
be  liable  during  the  period  premium  note  remains  due 
and  unpaid,  is  valid  and  will  be  enforced.  Forest  City 
Ins.  Co,  V.  School  Directors,  4  Bradwell,  145.     1876. 

§  88.  Surrender  of  a  policy  of  a  mutual  company  is 
not  effectual  to  relieve  assured  from  liability  on  his  pre- 
mium note  when  delivered  to  a  stranger,  with  notice  to 
the  agent  of  the  comjiany.  American  Ins.  Co.  v.  Wood- 
ruff', 84  Mich.  6.     1876. 

§  80.  Policy  was  made  out  and  dated  October  1, 1872, 
by  mutual  verbal  agreement,  but  I'emained  in  company's 
office  imtil  November  14,  1872,  upon  which  date  assured 
called  at  the  office  and  received  the  policy,  at  same  time 
giving  dejwsit  note,  but  dating  it  October  1,  1872.  The 
secretary,  in  answer  to  inquiry  by  assured,  said  tiiat  the 
comjiany,  in  his  opinion,  would  have  a  surplus  of  $700,000; 
that,  in  his  opinion,  the  office  was  sound  and  good,  and 
would  go  on.  About  Noveml)er  23,  1872,  com])any  was 
enjoined  from  continuing,  and  was  subsequently  put  in 


MUTUAL  COMPANIES. 


199 


hands  of  a  receiver.  On  November  18,  1872,  directors 
voted  that  all  premium  notes  should  be  paid  immediately, 
and  on  April  23, 1873,  an  assessment  was  voted.  Petition 
by  assured  in  equity  that  company  be  restrained  from  col- 
lecting assessments  upon  policy  and  deposit  note.  Decree 
of  dismissal  and  appeal.  Ileld^  that  liability  of  the  assured 
as  member  of  the  company  attached  on  October  1,  1872, 
and  that  secretary's  expression  of  his  opinion  aflPbrded  no 
ground  of  relief.  Decree  affirmed.  Commonwealth 
Mechanics'  Ins.  Co.  120  Mass.  495.     1876. 


V. 


§  90.  Part  payment  of  a  premium  note  will  not 
operate  as  a  waiver  of  condition  avoiding  policy  for  non- 
payment. Garlick  v.  Miss.  Valley  Ins.  Co.  44  Iowa,  553. 
1876. 

§  91.  By-law  provided  that  **  if  the  assured  shall 
neglect  for  the  space  of  ten  days,  when  personally  called 
on,  or  after  notice  in  writing  had  been  left  at  his  last  and 
usual  place  of  abode  and  business,  to  pay  any  assessment, 
the  risk  shall  be  suspended ;  and  if  the  insured  shall  re- 
fuse to  pay  any  assessment,  or  if  for  any  other  cause  the 
risk  is  considered  unequal  or  injurious,  the  directors  may 
terminate  same  by  giving  notice  in  writing,  <fec."  Notice 
of  assessment  was  sent  by  mail,  but  was  not  received  by 
assured.  Ileld^  that  it  was  essential  notice  should  be 
actually  received  by  assured,  or  left  at  his  place  of  abode 
or  business,  before  it  could  be  assumed  that  he  had  re- 
fused to  pay  an  assessment,  to  render  notice  of  cancella- 
tion effectual.  Mullen  v.  Dorchester  Mut.  Fire  Ins.  Co. 
121  Mass.  171.     1876. 

§  92.  The  validity  of  a  premium  note  given  as  au- 
thorized by  statute  does  not  depend  uj)on  a  mere  ques- 
tion of  consideration.  The  insolvency  of  the  company 
and  the  fact  that  no  insurance  was  obtained  or  existed  do 
not  constitute  defenses.  Howard  v.  Palmer,  64  Me.  86. 
1874.  And  in  such  case,  after  payment  of  the  note  parley 
has  no  claim  for  reimbursement  on  ground  of  the  failure 
to  provide  insurance.  Iron  Co.  v.  Me.  Mut.  Ins.  Co.  66 
Me.  118.     1876. 


m-n 


200 


MUTUAL  COMPANIES. 


§  93.  An  assessment  cannot  "be  recovered  by  a  for- 
eign corporation  when  the  insurance  was  effected  in  New- 
Jersey  through  an  agent,  such  agent  not  having  complied 
with  the  statute  in  relation  to  foreign  insurance  companies. 
Stewart  v.  Northampton  Ins.  Co  9  Vroom,  N.  J.  L.  R. 
436.     1876. 

§  94.  Contract  of  a  mutual  company  provided  that 
the  directors  should  ascertain  and  determine  the  amount 
of  loss  or  damage,  and  that  if  the  assured  was  not  satis- 
fied with  such  determination  and  brought  suit,  if  he 
should  recover  less  than  the  amount  so  determined  he 
should  be  nonsuited  and  the  company  recover  its  costs. 
Fire  occurred  October  23d,  1873.  December  9th,  1873, 
the  directors  voted  to  pay  the  assured  a  certain  amount, 
which  was  declined  by  the  assured.  On  the  12th  of  Jan- 
uary, 1874,  the  directors  withdrew  all  offers  previously 
made,  and  so  notified  the  insured,  who  subsequently 
bringing  suit  and  recovering  less  than  the  amount  which 
had  been  previously  offered.  Held,  the  company,  by 
withdrawing  all  overtures  and  propositions  for  a  compro- 
mise, were  estopped  to  say  that  they  had  determined  the 
amount  of  damages,  and  that  therefore  plaintiff  was  eii- 
titled  to  judgment  upon  the  verdict.  Simpson  v.  Ins.  Co. 
57  N.  H.  160.     1876. 

§  95.  A  member  of  a  mutual  company  is  liabia  only 
for  assessment  for  losses  which  occurred  during  the  life  of 
his  policy.  Stewart  v.  Northampton  Mutual  Ins.  Co.  9 
Vroom,  N.  J.  L.  II.  436.     1876. 

§  96.  Collection  of  assessment  recognizing  the  policy 
as  an  existing  contract  witii  knowledge  of  the  facts  waives 
forfeiture.  Witte  v.  Western  Mutual  Fire  Ins.  Co.  1  Mo. 
App.  188.     1876. 

§  97.  Semhle,  that  a  mortgagee  who  becomes  the  as- 
signee of  a  policy  under  the  Mutual  Insurance  Act  with 
consent  of  the  company  becomes  the  person  insured  l)y 
the  company  to  the  extent  of  his  own  interest,  and  if 
there  is  a  loss  is  entitled  to  sue  for  indemnity  in  his  own 
name ;  and  that  by  the  assignment  and  consent  the  mort- 


I     ' 


MUTUAL  COMPANIES. 


201 


(rao-ee  requires  a  separate  and  independent  interest  in  the 
policy,  and  while  he  is  bound  by  everything  prior  to  the 
assignment,  as  the  mortgagor  was  himself  bound,  and  con- 
tinues bound  by  the  general  conditions  after  the  assign- 
ment which  he  would  have  been  bound  by  if  he  had 
taken  out  a  new  policy  in  his  own  name,  he  is  not  bound 
by  the  contract  for  further  insurance  made  by  the  mort- 
gage after  the  assignment  of  which  the  mortgagee  had  no 
notice  or  knowledge,  and  which  he  could  not  possibly 
guard  against,  nor  by  a  second  mortgage  made  by  the 
owner  by  a  further  alienation  in  any  manner  of  the  prop- 
erty, nor  by  any  act  of  that  kind.  Mechanics'  Building 
and  Savings  Society  v.  Gore  District  Mutual  Fire  Ins.  Co. 
40  Up.  Can.  Q.  B.  220.     1876. 

§  98.  A  mutual  company  cannot  recover  upon  a 
premium  note  obtained  from  the  assured  by  false  repre- 
sentations of  the  agent,  even  although  such  agent  had  no 
authority  to  make  the  representations.  Lycoming  Fire 
Ins.  Co.  V.  Wood  worth,  83  Pa.  223.     1876. 

§  99.  The  effect  of  returning  policy  to  assured  after 
notification  that  the  premises  were  used  for  certain  pur- 
poses is  to  waive  any  forfeiture  which  had  taken  place  by 
reason  of  such  use,  but  it  does  not  operate  as  an  indefinite 
extension  of  the  time  of  payment  of  premium  note. 
Policy  providing  that  if  any  part  of  the  note  should  be 
due  and  unpaid  at  time  of  the  loss,  it  should  be  void, 
assured  cannot  make  an  effectual  tender  of  the  amount 
due  after  a  loss.  Wodrow  v.  Farmers'  Ins.  Co.  7  Ins.  L.  J. 
77.     1876.     Iowa. 

§  100.  An  assessment  including  expenses  and  liabili- 
ties incurred  before  assured  becomes  a  member  of  the 
company  is  invalid  as  against  him.  Ins.  Co.  v.  Chase,  56 
N.  H.  341.     1876. 

§  101.  Under  a  charter  of  a  mutual  company  a 
power  conferred  which  in  its  execution  necessarily  in- 
volves judgment  and  discretion  cannot  be  delegated,  and 
in  such  a  case  the  directors  cannot  ratify  what  they  could 


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MUTUAL  COMPANIES. 


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not  authorize  under  their  charter.     Ins.  Co.  v.  Chase,  56 
N.  H.  341.     1876. 

§  102.  If  there  is  any  evidence  tending  to  show  an 
alteration  of  any  receipt  given  for  the  premium  the  ques- 
tion should  be  submitted  to  the  jury.  Farmers'  Mutual 
Ins.  Co.  V.  Bair,  82  Pa.  33.     1876. 

§  103.  Company  is  bound  to  give  notice  of  an  assess- 
ment to  the  executor  or  legal  representatives  of  the  as- 
sured who  has  died,  and  in  the  absence  of  such  notice, 
policy  cannot  be  forfeited  for  non-payment  of  an  assess- 
ment. Guggisberg  v.  Waterloo  Mut.  Ins.  Co.  24  Grant 
Ch.  350.     1876. 

§  104.  A  premium  note  taken  in  Indiana  by  an  agent 
of  a  mutual  company  which  has  not  complied  with  the 
statute,  is  void.  Lamb  v.  Lamb,  6  Biss.  420.  1875. 
But  non-compliance  with  statute  is  no  defense  where  it  ap- 
pears that  the  agent  was  not  authorized  to  make  contracts, 
but  only  to  receive  proposals,  money  or  notes,  and  for- 
ward them  to  company's  agent  in  another  State.  Lamb 
V.  Bowser,  7  Biss.  372.     1877. 

§  105.  Mutual  company  waives  a  forfeiture  by  de- 
manding and  receiving  from  the  assured  a  subsiequent 
assessment.  Lyons  v.  Globe  Mut.  Fire  Ins.  Co.  27  Up. 
Can.  C.  P.  567.     1877. 

§  106.  Premium  note  held  negotiable.  Mc Arthur  v. 
Smith,  1  Tupper,  276.     1877. 

§  107.  Assured  had  applied  for  his  insurance  through 
an  agent  to  whom  he  had  given  a  note  for  the  premium. 
Just  after  note  was  duo  assured  wrote  to  company  asking 
it  whether  it  held  the  note  or  not,  and  to  inform  him 
whether  policy  was  good,  without  agent  liaving  counter- 
signed it.  To  wliich  company  replied,  "  Have  yours  of 
the  4th  inst.  This  man  Ferguson  (the  agent)  is  an  im- 
postor, and  we  are  trying  to  get  on  his  track,  and  may  be 
able  to  write  you  further  on  this  subject  again.  Your 
note  never  came  here,  and  I  advise  you  not  to  pay  it,  who- 
ever should  call  on  you  for  the  same."     Held,  that  com- 


MUTUAL  COMPANIES. 


pany  was  estopped  from  defense  founded  on  non-payment 
of  the  note.     Benson  v.  Ottawa  Ins.  Co.  42  Up.  Can.  Q.  B. 

282.     1877. 

§  108.  A  mortgagee  to  whom  loss  has  been  made 
payable  by  assignment,  after  payment  of  the  mortgage, 
cannot  maintain  an  action  as  trustee  for  the  assured, 
policy  being  void  as  to  the  latter,  for  failure  to  pay  assess- 
ment. Oxford  Building  Soc.  v.  Waterloo  Ins.  Co.  42  Up. 
Can.  Q.  B.  181.     1877. 

§  109.  Assured  was  assessed  in  1875  and  again  in 
1876.  Shortly  thereafter  assured  obtained  other  insur- 
ance without  notification  or  consent.  On  September  23d, 
1876,  assured  was  notified  that  unless  he  paid  both  assess- 
ments within  thirty  days  his  policy  would  be  void.  On 
October  17th,  187H,  property  was  destroyed  by  fire,  and 
on  the  27th  day  of  January  following,  company  received 
the  amount  of  both  assessments.  Hdd,  not  to  constitute 
a  waiver  of  condition  in  regard  to  other  insurance,  and 
semhk  that  it  could  not  be  a  waiver  of  forfeiture  on 
ground  of  non-payment  of  the  assessments.  Lyons  v. 
Globe  Mut.  Fire  Ins.  Co.  28  Up.  Can.  C.  P.  62.     1877. 

§  110.  When  by-laws  of  mutual  company  require 
publication  of  notice  of  assessment  it  is  essential  to  prove 
it  before  suit  can  be  sustained  against  a  member.  North- 
ampton Mutual  Ins.  Co.  v.  Stewart,  10  Vroom,  N.  J.  L.  K. 

486.     1877. 

§  111.  If  company  with  knowledge  of  the  existence 
of  an  encumbrance  knowingly  receives  an  assessment 
upon  a  note,  such  conduct  is  a  waiver  of  the  breach  of 
warranty,  whetiier  so  intended  or  not.  On  the  other 
hand,  if  company  receive  such  assessment  under  an  errone- 
ous idea  that  it  is  upon  another  and  totally  difl:erent  note, 
its  right  to  insist  upon  the  forfeiture  is  unaffected  by 
such  payment  and  receipt.  Southern  Mutual  Ins.  Co.  v. 
Yates,  28  Grat.  585.     1877. 

§  112.  Neglect  to  pay  assessment  has  the  effect  of 
suspending  the  protection  of  the  policy  until  default  is 


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204 


MUTUAL  COMPANIES. 


removed.  The  fact  that  great  indulgence  was  extended 
to  delinquent  membei-s  of  the  company  and  that  the  com- 
pany was  accustomed  to  receive  assessments  long  after 
they  were  due,  is  entirely  inconsistent  with  the  fact  that 
while  the  default  continued  the  protection  of  the  policy 
was  suspended.  A  notice  informing  members  that  a  pen- 
altj'  would  be  exacted  if  assessments  were  not  paid  by  a 
c'-^ '  I  time,  furnishes  no  excuse  for  non-payment.  Wash- 
i.V'  Oii  '*^utual  Fire  Ins.  Co.  v.  Rosenberger,  84  Pa.  373. 


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^113.  Waiver  of  condition  suspending  policy  during 
contiu  ante  ^i  default  in  payment  of  an  assessment,  should 
not  be  infenvd  fiom  a  mere  reminder  in  a  notice  that  the 
assessment  is  unpaid.  Leonard  v.  Lebanon  Mut.  Ins.  Co. 
7  Ins.  L.  J.  79.     1877.     Pa. 

§  114.  Action  was  brought  upon  a  premium  note. 
The  company  was  an  Illinois  corporation.  The  note  was 
made  by  the  assured  in  Indiana  and  made  payable  to  the 
company.  An  agent  of  the  company  in  same  place  re- 
ceived the  note  and  application  for  insurance  which  he 
forwarded  to  the  company  in  Illinois.  The  note  and  ap- 
plication were  received  and  accepted  and  policy  was  re- 
turned by  mail  to  the  assured.  The  agent  was  only  au- 
thorized to  receive  and  forward  applications,  and  neither 
the  company  nor  the  agent  had  complied  w  itli  the  statute 
in  regard  to  foreign  companies.  Held,  no  defense.  Bow- 
ser v.  Lamb,  C  Ins.  L.  J.  375.     1877.     U.  S.  Circuit,  Ind. 

§  115.  Policy  does  not  become  absolutely  void  on 
non-payment  of  assessment,  but  is  voidable  only.  Its 
operation  is  suspended  during  continuance  of  default. 
Company  waives  forfeiture  by  claiming  a  subsequent  as- 
sessment. Columbia  Ins.  Co.  v.  Buckley,  G  Ins.  L.  J.  031. 
1877.     Pa. 

§  IIG.  A  question  of  notice  to  member  of  mutual 
company  of  an  assessment  should  be  submitted  to  the 
jury.     Buckley  v.  Columbia  Ins.  Co.  83  Pa.  298.     1877. 

§  117.  Condition  of  mutual  policy  provided  that  if 
assessment  was  not  paid  within   30  days  after  demand, 


MUTUAL  COMPANIES. 


205 


that  it  should  be  void.  One  assessment  was  made  May 
10th,  1873,  and  another  January  12th,  1874.  Due  notice 
was  given  and  demand  made.  Held^  that  the  non-pay- 
ment of  the  first  assessment  within  30  days  did  not  of 
itself  avoid  the  policy  so  as  to  prevent  a  second  assess- 
ment being  lawfully  made ;  that  the  policy  did  not  be- 
come absolutely  void,  but  voidable  only  at  option  of  com- 
pany; and  that  forfeiture  might  be  waived.  If  ompany 
cancels  the  policy,  the  premium  note  is  not  liable  to  as- 
sessment for  future  losses,  but  if  it  does  not  elect  to  de- 
clare the  policy  void,  the  insurance  ia  suspended  only 
during  continuance  of  default  in  payment.  Columbia 
Ins.  Co.  V.  Buckley,  83  Pa.  293.     1877. 

§  118.  If  assured,  after  obtaining  insurance  by  a 
valued  policy,  in  which  there  is  no  provision  as  to  contri- 
bution, finds  his  property  still  uninsured  to  three  fourths 
its  actual  value,  he  may  insure  in  any  mutual  company 
until  this  amount  is  reached.  If,  after  prior  policy  is  paid 
in  full,  the  amount  which  such  latter  company  is  to  pay 
does  not  exceed  the  proportion  which  its  insurance  bears 
to  the  whole,  and  if  the  assured  is  not  to  receive  in  all 
more  than  three-fourths  of  the  value  (as  limited  by  the 
statute),  there  is  no  ground  of  defense.  Bardwell  v.  Con- 
way Ins.  Co.  122  Mass.  90.     1877. 

§  119.  When  statute  gives  a  mutual  company  a  lien 
in  the  nature  of  a  judgment  upon  the  property  insured 
to  the  amount  of  his  deposit  note,  if  the  insurance  covers 
personal  property  only  it  is  not  within  the  statute.  The 
fact  that  one-fifth  of  the  whole  risk  covered  by  the  policy 
is  on  personal  property  does  not  prevent  tlie  filing  of  a 
lien  against  the  real  estate.  Such  lien  may  be  filed  after 
the  expiration  of  the  policy.  People's  Fire  Ins.  Co.  v. 
Hartshorne,  84  Pa.  453.     1877. 

§  120.  Counsel  employed  by  policy  holders  of  an  in- 
solvent mutual  company  to  represent  their  interests,  has 
no  claim  upon  surplus  fund  in  receiver's  hands  for  his 
compensation.  Commonwealth  v.  Mechanics'  Ins.  Co.  122 
Mass.  421.     1877. 


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MUTUAL  C03IPANIE8. 


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§  121.  A  premium  note  constituting  part  of  the 
assets  of  an  insolvent  company  cannot  be  surrendered 
and  cancelled  in  consideration  of  a  promise  by  the  maker 
to  claim  nothing  of  company  for  its  use.  Maine  Ins.  Co 
V.  Pickering,  66  Me.  130.     1877. 

§  122.  Premium  note  appearing  to  have  been  given 
for  value  cannot  be  presumed  that  it  was  given  in  Michi- 
gan in  violation  of  statute  of  the  State.  American  Ins 
Co.  V.  Cutler,  30  Mich.  261.     1877. 

§  123.  When  charter  of  a  mutual  company  provides 
that  upon  default  in  payment  of  an  installment  due  upon 
a  premium  note,  the  risk  shall  be  suspended  during  the 
continuance  of  the  default,  but  that  it  should  revive  upon 
the  payment  of  the  note,  the  company  may  recover  the 
full  amount  of  the  note,  and  upon  the  payment  by  the 
assured,  whether  voluntary  or  otherwise,  he  acquires  a 
paid-up  policy  for  the  remainder  of  the  original  period  of 
insurance.    American  Ins.  Co.  v.  Klink,  65  Mo.  78.    1877. 

§  124.  Notice  to  agent  of  mutual  company  through 
whom  tlie  insurance  was  obtained,  that  the  assured  does 
not  wish  longer  to  be  insured  in  the  company,  cannot  de- 
stroy the  insurance  relation.  Assured  cannot  thus  relieve 
himself  from  his  obligation,  nor  is  notice  of  his  desire  to 
such  an  agent  notice  to  the  company.  Buckley  v.  Colum- 
l)ia  Ins.  Co.  83  Pa.  298.     1877. 

§  12.5.  The  lien  of  a  judgment  entered  in  a  suit 
brought  by  mutual  company  against  a  member  for  an  as- 
sessment, extends  only  to  the  property  insured.  Ilaf- 
penny  v.  People's  Fire*  Ins.  Co.  85  Pa.  48.     1877. 

§  126.  Sect.  20,  L.  1871,  p.  225  (Kansas),  does  not 
authorize  a  company  to  exchange  its  jiolicy  for  a  mort- 
gage of  the  assured  for  the  purpose  of  an  otf-set.  Kans. 
Ins.  Co.  V.  Craft,  18  Kans.  283.     1877. 

§  127.  There  can  be  no  liability  on  the  part  of  u 
mutual  company  to  the  assured  for  the  loss  of  his  j^rop- 
erty  unless  he  at  the  same  time  had  payed,  or  assumed  to 
pay,  his  proportionate  share  of  the  expenses  and  the  losses 


MUTUAL  COMPANIES. 


207 


sustained  by  other  members.  There  is  no  contract  of  in- 
surance until  the  company  could  sustain  an  action  against 
him  on  an  assessment.     Schaffer  v.  Mutual  Ins.  Co.  89  Pa. 

296.    1877. 

§  128.  It  is  requisite  that  the  amount  be  correctly 
stated  in  a  notice  of  assessment.  If  incorrect  the  notice 
is  insufficient  and  non-payment  is  no  defense  to  an  action, 
upon  the  policy.    Frey  v.  Mutual  Ins.  Co.  43  Up.  Can.  Q. 

B.  102.    1878. 

§  129.  A  mutual  company  which  has  given  a  receipt 
to  the  assured,  acknowledging  "  that  the  plaintiff  has 
given  a  deposit  note  and  made  a  cash  payment  thereon  of 
a  certain  amount,  is  estopped  to  take  advantage  of  a  con- 
dition providing  that  in  case  a  note  for  the  first  payment 
should  remain  unpaid  30  days  after  it  was  due  the  policy 
should  be  void.     Masse  v.  Hochelaga  Mut.  Ins.  Co.  22  L. 

C.  Jurist,  124.     1878. 

§  180.  Under  the  statutes  of  Indiana  a  premium  note 
of  a  married  woman  is  void.  American  Ins.  Co.  v.  Avery, 
eOlnd.  56G.     1878. 

§  131.  A  policy  does  not  become  void  upon  failure 
of  assured  to  pay  an  installment  of  premium  note,  but  is 
voidable  only  at  option  of  the  company.  Assured  remains 
liable  upon  his  note.  American  Ins.  Co.  v.  Henley,  60 
Ind.  51G.     1878. 

§  132.  Assured  is  not  relieved  from  forfeiture  by  his 
not  receiving  notice  of  an  assessment  duly  mailed,  owing 
to  his  absence  from  the  country.  Greeley  v.  Iowa  State 
Ins.  Co.  50  Iowa,  80.     1878. 

§  133.  By  insolvency  of  company  and  a  transfer  of 
its  assets  to  a  leceiver  a  stock  note  can  be  enforced  only  to 
extent  of  the  deficit,  and  tliat  the  declaration  should  show. 
Lamar  Ins.  Co.  v.  Moore,  7  Ins.  L.  J.  747.     1878.     111. 

§  134.  Cliarter  provided  that  every  member  who 
should  sustain  a  loss  should  immediately  notify  the  presi- 
dent, who  should  forthwith  call  a  meeting  of  the  directors: 


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208 


MUTUAL  COMPANIES. 


that  they  should  appoint  a  committee  to  ascertain  amount 
of  the  loss,  and  in  case  of  inability  of  the  parties  to  agree 
claimant  could  appeal  to  the  county  judge  who  should 
appoint  three  persons  as  a  committee  of  reference,  who 
should  make  their  award  in  writing,  which  award  should 
be  final.  Held,  that  it  was  not  necessary  to  aver  appoint- 
ment and  decision  of  an  adjusting  committee  to  sustain  an 
action.  Hughes  v,  Vinland  Ins.  Co.  7  Ins.  L.  J.  331. 
1878.     Wis. 

§  135.  Directors  of  mutual  company  have  no  authori- 
ty to  make  assessments  in  anticipation  of  losses.  Simple 
excess  arising  from  error  of  judgment  where  they  act  hon- 
estly  and  prudently  does  not  vitiate  an  assessment.  If  an 
assessment  is  invalid  the  policy  is  not  forfeited  or  sus- 
pended  by  neglect  or  refusal  to  pay  it.  Rosenberger  v. 
Washington  Fire  Ins.  Co.  87  Pa.  207!*    1878. 

§136.  Members  of  mutual  company  giving  premiiim 
notes  are  liable  to  assessment  to  pay  losses  which  had  t  y 
curred  to  those  who  had  policies  on  the  cash  premium 
plan,  and  that  such  an  assessment  is  valid  and  proper,  al- 
though made  by  resolution  of  the  board  of  directors  of  the 
company  held  more  than  a  month  after  the  general  assign- 
ment made  by  the  company  for  the  benefit  of  creditors. 
Schimpf  V.  Lehigh  Valley  Mutual  Ins.  Co.  86  Pa.  373. 
1878. 

§  137.  In  consideration  of  $150  in  cash  and  of  a 
premium  note  providing  for  the  payment  of  the  balance  of 
the  premium  in  four  annual  installments  assured  received 
a  policy  which,  among  other  things,  provided  that  in  case 
the  assured  should  fail  to  pay  the  installments  mentioned 
in  the  note  within  the  30  days  after  the  same  severally 
became  due,  then  the  policy  should  be  void  during  the  con- 
tinuance of  such  default,  that  upon  payment  of  the  amount 
due  it  should  revive  and  be  again  in  full  force.  Assured 
having  failed  to  pay  installment  due  on  the  note  within 
thirty  days  specified,  action  being  brought  upon  it  by  the 
company,  Held,  that  the  policy  couhl  not  be  regarded  as 
an  absolute  insurance  for  five  years,  but  that  it  was  an 


MUTUAL  COMPANIES. 


209 


absolute  Insurance  but  for  one  year,  with  the  right  of  the 
insured  to  have  it  kept  in  force  from  year  to  year  by  the 
payment  of  the  annual  installment,  and  that  the  company 
not  being  liable  under  the  policy  by  the  terms  of  the  con- 
tract it  could  not  collect  the  premium  at  its  option  wliile 
avoiding  all  risk.  Yost  v.  American  Ins.  Co.  39  Mich. 
531.  1878.  Also  see  same  company  v.  Stoy,  41  Mich. 
385.     1879. 

§  138.  If  company  intentionally,  by  language  or  c'on- 
duct,  leads  its  policy  holders  to  believe  that  they  need  not 
pay  their  premium  notes  promptly,  and  that  no  advantage 
will  be  taken  of  that  fact,  it  is  equivalent  to  an  express 
agreement  to  that  effect,  and  is  a  waiver  of  forfeiture. 
McCraw  V.  Old  North  State  Ins.  Co.  78  N.  C.  149.     1878. 

§  139.  Member  of  a  mutual  company  cannot  pay  an 
assessment  by  an  individual  trade,  exchange  or  barter  with 
an  agent.  The  mere  fact  that  policy  is  procured  by  an 
agent  creates  no  legal  presumption  that  he  is  authorized  to 
receive  assessments  subsequently  made.  Ins.  Co.  v.  Coch- 
ran, 88  Pa.  230.     1878. 

§  140.  Although  condition  declares  that  policy  shall 
be  void  on  a  failure  to  pay  an  assessment  within  a  speci- 
fied time,  the  policy  does  not  thereby  become  ipso  facto 
void.  The  company  may  waive  the  right  of  avoidance  and 
then  the  contract  relation  is  not  wholly  dissolved,  but  the 
protection  of  the  policy  is  suspended  until  the  default  of 
non-payment  is  removed.  No  recovery  can,  therefore,  be 
had  for  the  loss  sustained  during  the  continuance  of  such 
default.  By  levying  a  subsequent  assessment  the  com- 
pany does  not  waive  its  right  to  demand  payment  of  one 
made  a  year  before ;  nor  does  it  thereby  remove  the  dis- 
abling consequences  flowing  from  the  neglect  to  pay  that 
assessment.     Ins.  Co.  v.  Cochran,  88  Pa.  230.     1878. 

§  141.  Liability  upon  premium  note  to  render  as- 
sured liable  to  assessment  and  of  the  company  for  a  loss 
must  concur.  Mutual  Assurance  Society  v.  Holt,  29  Grat. 
61iJ.    1878. 

Vol.  II.~14 


i;^ 


f  w\ 


A 


210 


MUTUAL  COMrANlES. 


§  142.  The  issue  of  cash  premium  policies  is  not  in- 
consistent with  the  functions  of  a  mutual  company  also 
doing  business  on  the  note  plan,  and  the  fact  that  it  has 
issued  policies  for  cash  premiums  without  issuing  a  certain 
amount  of  stock,  as  it  was  authorized  by  its  charter  to  do, 
does  not  authorize  its  dissolution  by  the  court  and  ap- 
pointment of  a  receiver.  Commonwealth  v.  Merchants' 
and  Mechanics'  Ins.  Cos.  2  Pearson,  428.     1878. 

§  143.  Member  of  mutual  company  by  surrender  of 
his  policy  accepted  by  the  company  operates  as  a  release 
of  the  latter.  The  former  has  nothing  more  to  do,  and  he 
is  as  effectually  released  from  all  future  obligations  to  '^a 
company  as  though  his  name  had  never  been  on  its  b 
In  such  case  the  company  cannot  as  against  him  set  Uf 
it  had  neglected  to  do  that  which  it  had  agreed  to  do  in 
the  erasure  of  his  name  from  the  books.  The  company  is 
not  liable  upon  the  policy  from  the  time  of  its  surrender. 
Farmers'  Mutual  Ins.  Co.  v.  Wenger,  90  Pa.  220.     1879. 

§  144.  A  mortgagee  to  whom  insurance  has  been  as- 
signed as  security  is  entitled  to  the  deposit  premium  on  a 
sale  being  made  of  the  mortgaged  premises,  which  puts  an 
end  to  his  insurable  interest  and  to  that  of  the  mortgagor, 
and  same  under  the  conditions  of  the  policy  being  due  to 
the  assured.     Rafsnyder's  App.  88  Pa.  436.     1879. 

§  145.  A  conveyance  and  sale  of  the  property  with- 
out the  notice  to  and  consent  of  mutual  company  is  such 
an  alienation  of  the  property  as  avoids  the  insurance. 
Moulthrop  V.  Ins.  Co.  53  Vt.  123.     1879. 

§  146.  The  liability  of  members  of  mutual  company 
attaches  only  to  losses  which  occur  after  they  become 
members.  People's  Fire  Ins.  Co.  v.  Ilartshorne,  90  Pa. 
465.     1879. 

§  147.  Secretary's  certificate  as  to  assessments  is 
prima  facie  evidence  of  their  correctness,  but  it  may  be  re- 
butted by  showing  either  fraud  and  illegality  or  gross 
mistake  in  making  the  assessments.  People's  Fire  Ins.  Co. 
V.  Hartshorne,  90  Pa.  465.     1879. 


UUTUAL  COMPANIES. 


m 


§  148.  Assured  is  not  relieved  from  his  liability  to 
pay  premium  note  when  due  or  from  the  efltect  of  non- 
payment by  the  happening  of  a  loss  just  before  it  becomes 
due,  upon  the  assumption  that  company  would  deduct  the 
amount  in  settlement  of  the  loss.  Ballagh  v.  Royal  Mut- 
ual lus.  Co.  44  Up.  Can.  Q.  B.  70.     1879. 

§  149.  In  February,  1875,  property  insured  in  mut- 
ual company  was  destroyed  by  fire.  At  that  time  there 
were  two  unpaid  assessments  of  which  assured  had  been 
notified.  One  of  the  by-laws  provided  that  where  the  as- 
Bessments  were  thus  unpaid  assured  should  forfeit  all  claimi 
against  the  company  for  any  loss  sustained  during  delin- 
quency. Immediately  after  the  fire  assured  paid  the  assess- 
ment to  the  local  agent  of  the  company  who  received  the 
amount  with  knowledge  of  the  loss,  but  forwarded  the 
money  to  the  company  without  mentioning  the  fire  of  which 
the  ofiicers  at  that  time  had  received  no  notice  from  any 
other  quarter.  March  16th,  1875,  the  board  of  director* 
adopted  a  resolution  instructing  the  proper  officers  to  draw 
a  draft  in  payment  of  the  loss  when  it  should  be  adjusted. 
On  the  second  of  April  following  the  board  passed  another 
resolution  that  they  did  not  consider  the  company  liable 
and  refused  to  make  any  adjustment  of  the  loss.  Held^ 
that  by  receiving  payment  of  the  assessments  company  had 
waived  any  objection  to  the  delay  in  paying  them  and  that 
the  company  was  bound  by  its  reception  of  the  assessments 
and  recognition  of  the  loss.  Farmers'  Mutual  Fire  Ins. 
Co.  V.  Bowen,  40  Mich.  147.     1879. 

§  1 50.  Policy  was  issued  in  consideration  of  six  dol- 
lars cash  and  an  installment  note  amounting  to  twenty- 
four  dollars,  payable  absolutely  at  specified  times.  Char- 
ter authorized  company  to  do  business  wholly  or  in  part 
upon  cash  or  mutual  pruiciple.  Held,  thai  assured  was 
liable  on  the  note  without  evidence  of  losses  and  an  as- 
sessment. Davenport  Fire  Ins.  Co.  v.  Moore,  50  Iowa,  619. 
1879. 

§  151.  Application,  policy,  and  premium  note  given 
by  the  assured  must  be  resorted  to  and  treated  as  but  one 
instrument  for  the  purpose  of  ascertaining  and  determin- 


t 

-  ■  1;' 


:     t 


212 


MUTUAL  COMPANIES. 


ing  the  rights  of  the  parties  to  a  mutual  policy.    Ameii 
can  Ins.  Co.  v.  Sioy,  41  Mich.  385.     1879. 

§  152.  A  foreign  insurance  company,  comin![»  into 
Michigan  under  an  authority  to  do  business  theiein  lor 
one  year,  and  issuing  policies  and  accepting  installment 
notes  for  the  premiums,  must,  in  order  to  collect  the  in- 
stallments as  they  become  due,  show  a  continued  and  ex- 
isting authority  as  a  condition  of  its  right  to  recover. 
American  Ins.  Co.  v.  Stoy,  41  Mich.  385.     1879. 

§  153.  A  mutual  company  waives  condition  provid 
ing  that  insurance  does  not  take  eifect  until  delivery  of 
note,  by  delivery  of  the  policy  to  assured  before  receiving 
the  note.  Behler  v.  German  Mut.  Ins.  Co.  68  Ind.  347. 
1879. 

§  154.  Agent  authorized  to  take  applications  has  no 
authority  to  extend  time  for  payment  of  piemium  note. 
Critchett  v.  American  Ins.  Co.  53  Iowa,  404.     1880. 

§  155.  Condition  providing  that  in  case  of  loss,  if  any 
assessment  should  be  unpaid  and  past  due  at  the  time,  the 
policy  should  be  void  and  of  no  effect,  is  valid  and  will  be 
enforced,  such  assessment  having  been  properly  and  legal- 
ly made.  Southern  Mutual  Ins.  Co.  v.  Taylor,  33  Giat. 
743.     1880. 

§  156.  Assured  who  becomes  a  meml)er  u[)on  the  or- 
ganization of  a  mutual  company,  filing  his  application  and 
premium  note,  is  entitled  to  a  policy  and  insurance  with- 
out reference  to  tlie  fact  whether  the  directois  have  for- 
mally approved  of  the  application  as  required  Ity  a  bylaw 
adopted  on  the  day  of  the  organization.  Vanslyko  v. 
Trempealeau  County  Mut.  Fire  Ins.  Co.  48  Wis.  083. 
1880. 

§  157.  An  agreement  to  cancel  the  insurance  and 
surrender  premium  note,  operates  to  relieve  members  from 
subsequent  assessmcint.  This  result  is  not  alKected  by 
failure  of  company  or  its  directors  to  return  note  as  jiroin- 
ised.     Acker  v.  llite,  10  Ins.  L.  J.  20.     1880.     Pa. 


NEGLIGENCE. 


213 


§  158.  A  premium  note  made  and  delivered  in  Indi- 
ana to  a  company  which  has  not  complied  with  the  statute 
governing  its  authority  to  do  business  in  the  State  is  not 
thereby  rendered  absolutely  void,  but  the  remedy  is  sus- 
pended until  statute  is  complied  with.  American  Ins.  Co. 
V.  Wellman,  9  Ins.  L.  J.  422.     1 880.     Ind. 

§  159.  Assessments  due  and  payable  by  members  of 
mutual  company  are  liable  in  garnishee  proceedings  insti- 
tuted at  instance  of  policy  holder  insured  on  cash  plan, 
and  who  has  obtained  a  judgment  against  the  company 
for  bis  loss.  Hays  v.  Lycoming  Fire  Ins.  Co.  10  Ins.  L.  J. 
507.    1881.    Pa. 

See  Foreign  Company,  §  49,  55. 


NEGLIGENCE. 

§  1.  Negligence,  although  it  may  have  caused  the 
fire,  will  not  avoid  the  policy.  Mickey  v.  Burlington  Ins. 
Co.  35  Iowa,  174.  1872.  s.  p.  Jameson  v.  Royal  Ins.  Co. 
Irish  Rep.  7  C.  L.  126.     1873. 


,  %'Sid 


NOTICE  OF  LOSS. 

§  1.  Notice  of  the  loss  to  a  local  agent  who  by  next 
mail  informs  the  company  by  a  letter  addressed  to  the 
secretary  is  sufficient.  Farmers'  Ins.  Co.  v.  Taylor,  73  Pa. 
342.     1873. 

§  2.  Notice  of  loss  may  be  given  by  a  vendee  who 
has  purchased  the  property  at  a  sale  under  proceedings  in 
the  orphans'  court,  assured  being  dead,  and  the  loss  having 
occurred  between  the  sale  and  the  confirmation.  Far- 
mers' Mutual  Ins.  Co.  v.  Graybill,  74  Pa.  17.     1873. 

§  3.  Notice  of  loss  to  a  local  agent  of  company  is  suf- 
ficient. Kendall  v.  Holland  Purchase  Ins.  Co.  2  T.  &  C. 
<N.  Y.  Sup.)  275.    1873.    Affi'd,  58  N.  Y.  682. 

§  4.  A  notice  given  six  days  after  injury  happening 
in  a  city  where  policy  was  issued  and  where  company  has 
a  resident  agent,  is  not  "immediate,"  no  excuse  being 
shown  for  delay.  Railway  Ins.  Co.  v.  Burwell,  44  Ind. 
460.     1873. 

§  5.  Condition  requiring  notice  of  loss  forthwith 
means  due  diligence  under  aU  circumstances,  and  an  18 
days'  notice  held  not  sufficient.  Edwards  v.  Ins.  Co.  75 
Pa.  378.     1874. 

§  6.  Waiver  of  proofs  is  a  waiver  of  immediate  no- 
tice of  the  fire.  Hibernia  Ins.  Co.  v.  O'Connor,  29  Mich. 
241.     1874. 

§  7.  When  policy  requires  notice  of  a  loss  "  forth- 
with," if  there  is  any  evidence  justifying  or  excusing  a 
delay  of  twenty-three  days,  the  question  should  be  sub- 
mitted to  the  jury.  Lycoming  Ins.  Co.  v.  Bedford,  5  Ins. 
L  J.  629.     1876.    Pa. 

§  8.  A  verbal  notice  of  loss  is  sufficient,  no  other 
being  stipulated  for.  If  not  given  in  accordance  with  the 
contract  the  informality  will  he  waived  by  the  failure  to 


NOTICE  OF  LOSS. 


215 


object  to  its  form  and  making  objection  to  payment  on 
other  grounds.  State  Ins.  Co.  v.  Maackens,  9  Vroom,  N. 
J.LR564.     1876. 

§  9.  The  facts  that  when  notice  of  a  loss  is  given  to 
secretary  of  a  company,  he  claims  that  the  company  has 
no  risk  upon  the  property,  without  taking  the  ground 
that  notice  is  too  late,  and  believing  that  policy  has  been 
canceled,  do  not  show  waiver  of  notice.  Bennett  v.  Ly- 
coming Mut.  Ins.  Co.  67  N.  Y.  274.     1876. 

§  10.  In  case  of  fire,  policy  required  notice  to  be  given 
<' forthwith."  Held^  that  the  word  does  not  mean  imme- 
diately or  instantaneously  after  the  fire.  It  means  within 
a  reasonable  time,  or  with  reasonable  diligence  after  the 
fire.  What  is  reasonable  time  depends  upon  all  the  cir- 
cumstances of  the  case.  When  the  facts  are  undisputed 
it  is  a  question  for  the  court.  Bennett  v.  Lycoming  Mut. 
Ins.  Co.  67  N.  Y.  274.     1876. 

§  11.  Property  was  destroyed  by  great  fire  in  Chicago, 
October  9, 1871.  Notice  was  given  and  received  without 
objection  on  November  13th  thereafter.  Policy  required 
"immediate  notice."  Held^  notice  to  be  given  in  sufficient 
time  in  consideration  of  the  special  circumstances  of  the 
case.  Knickerbocker  Ins.  Co.  v.  McGinnis,  87  111.  70.  1877. 

§  12.  The  condition  as  to  notice  is  a  precedent  one, 
non-performance  of  which  precludes  recovery.  Semhle 
that  accident  or  misfortune  happening  to  party  bound  to 
perform  such  a  condition,  unless  caused  by  adverse  party, 
will  not  excuse  performance.  Sherwood  v.  Agricultural 
Ins.  Co.  10  Hun,  593.  1877.  Affi'd,  73  N.  Y.  447,  this 
point  not  considered. 

§  13.  A  substantial  compliance  with  the  condition  in 
regard  to  notice  of  the  loss  accepted  and  acted  upon  by 
the  company  is  sufficient.  Willis  v.  Germania  Ins.  Co.  79 
N.C.  285.     1878. 

§  14.  Condition  in  regard  to  notice  of  loss  is  prece- 
dent to  right  of  action.  Ins.  Co.  v.  McGookey,  33  Ohio, 
555.    1878. 


I  ^.     1 


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M  '3 


210 


NOTICE  OF  LOSS. 


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§  15.     When  an  insurance  company  sends  an  agent 
to  adjust  a  loss,  it  is  estopped  to  subsequently  deny  that 
it  had  proper  notice  of  loss,  and  it  is,  in  the  absence  of 
fraud,  concluded  by  the  adjustment  made  by  such  ao^ent 
Home  Ins.  Co.  v.  Myer,  93  111.  271.     1879. 

§  16.  Notice  of  loss  was  signed  by  mother  of  owner 
and  advised  company  of  fire  and  number  of  its  policy. 
No  objection  was  made,  nor  ciL^r  to  return  it.  Held,  suffi- 
cient notice.  .  It  advised  defendant  of  the  loss,  which  was 
all  that  was  required.  O'Brien  v.  Phoenix  Ins.  Co.  76  N. 
Y.  459.     1879. 

§  17.  Policy  required  notice  of  loss  forthwith,  and 
that  proofs  should  be  furnished  in  fifteen  days.  Fire  oc- 
curred January  17th.  Next  day  assured  notified  local 
agent,  who  sent  a  dispatch  to  the  general  agent,  and  oa 
the  23d  assured  sent  such  agent  a  formal  written  notice, 
which  was  received  January  27th.  Proofs  were  prepared 
January  22d,  and  received  by  the  agent  of  the  company 
"  early  in  February,"  the  agent  not  recollecting  the  date. 
Ileldj  notice  sufficient  and  evidence  sufiicient  to  sustain  a 
finding  that  proofs  were  furnished  within  the  required 
time.  Peppit  v.  N.  B.  &  M.  Ins.  Co.  1  Russel  &  G.,  N.  S. 
219.     1879. 

§  18.  Provision  requiring  immediate  notice  requires 
due  diligence  under  all  circumstances.  Wooddy  v.  Old 
Dominion  Ins.  Co.  31  Grat.  302.     1879. 

§  19.  When  contract  is  completed  but  the  policy  Las 
not  been  delivered,  although  assured  is  required  by  its 
terms  to  give  immediate  notice  of  the  loss,  a  delay  of 
eighteen  days  held,  under  the  circumstances  of  the  case, 
not  to  be  a  violation  of  the  condition.  Wooddy  v.  Old 
Dominion  Ins.  Co.  31  Grat.  302.     1879. 

§  20.  Semhle  that  an  assignee  of  a  policy  after  a  fire 
may  give  sufficient  notice  of  a  loss.  Watertown  Ins.  Co. 
v.  Grover  &>  Baker  Sewing  Machine  Co.  41  Mich.  131. 
1879. 


OTHER  IXSUBANCE. 


217 


§  21.  Notice  of  los8  may  be  properly  given  by  a  party 
to  whom  loss  is  made  payable  to  local  agent  who  issued 
tlie  policy,  same  coming  to  the  knowledge  of  at  least  the 
jreneral  agent  or  adjuster  of  the  company.  Notice  is  dis- 
tinct fron*  proofs  of  loss;  the  olgect  is  that  the  company 
may  know  that  a  loss  has  in  fact  occurred,  that  it  may 
take  such  action  as  is  advisable  to  protect  its  interests. 
Watertown  Ins.  Co.  v.  Grover  &  Baker  Sewing  Machine 
Co.  41  Mich.  131.     1879. 

§  22.  The  condition  requiring  immediate  notice  of  a 
loss  must  receive  a  liberal  construction,  and  the  question 
is  one  to  be  determined  by  the  jury.  The  word  "  imme- 
diate" must  mean  a  reasonable  time  under  the  circum- 
stances. Lockwood  v.  Middlesex  Mut.  Ins.  Co.  47  Conn. 
563.    1880. 

Sec  Agent,  §  26.     Examination,  4.    Proofs  of  Loss,  2,  66,  63.     Questions 
for  Court  and  Jury,  1.    Waiver,  19. 


'mm 


OTHER  INSURANCE. 

1.  Notice  of  other  insurance  to  a  broker  does  not 
hind  the  company.  McLachlan  v.  -^tna  Ins.  Co.  4  Allen, 
N.B.  173.    1858. 

§  2.  To  constitute  other  insurance,  policy  must  be 
upon  the  same  interest,  and  it  must  be  shown  that  the  as- 
sured was  entitled  to  recover.  McLachlan  v.  -/Etna  Ins. 
Co.  4  Allen,  N.B.  173.     1858. 

§  3,  Assured  is  bound  to  give  notice  of  a  second  pol- 
icy obtained  by  him,  whether  valid  or  not.  Campbell  v. 
Mna.  Ins.  Co.  1  Cochran,  N.  S.  21.     1859. 

§  4.  Clause  requiring  notice  of  other  insurance  is  a 
condition  precedent  to  a  right  of  action.  McBride  v.  Gore 
District  Mut.  Ins.  Co.  30  Up.  Can.  Q.  B.  451.     1870. 


i''^-^i 


218 


OTHER  INSURANCE. 


N« 


§  5.  Verbal  notice  to  agent  who  issued  the  policy  of 
the  obtaining  of  subsequent  insurance  is  insufficient  to 
make  the  company  liable,  consent  not  being  indorsed  on 
the  policy  as  required.  Hendrickson  v.  Queen  Ins.  Co.  31 
Up.  Can."  Q.  B.  547.     1871. 

§  6.  Other  insurance  to  render  policy  void  must  be 
effected  by  the  assured,  or  for  his  benefit,  or  with  his 
knowledge  and  consent.  Kelly  v.  Liv.,  Lond.  &  Globe  Ins. 
Co.  2  Hannay,  266.     1871. 

§  7.  The  existence  of  other  insurance  does  not  make 
a  policy  absolutely  void,  but  voidable  only  at  option  of 
the  company.  Hubbard  v.  Hartford  Fire  Ins.  Co.  33  Iowa, 
325.     1871. 

§  8.  A  secoud  policy  must  be  valid  to  be  "  other  in- 
surance "  making  former  void.  Hubbard  v.  Hartford  Fire 
Ins.  Co.  33  Iowa,  325.     1871. 

§  9.  The  clause  "  other  insurance  permitted  without 
notice,"  applies  to  prior  as  well  as  to  subsequent  insur- 
ance. Frederick  Co.  Mut.  Ins.  Co.  v.  Deford,  38  Md.  404. 
1873. 

§  10.  Policy  contained  provision  that  it  should  be 
void  if  the  insured  should  have  or  should  procure  any 
other  insurance  without  consent.  Both  parties  were 
aware  of  the  existence  of  a  prior  policy  at  the  time  of  the 
issue  of  the  former,  and  it  was  a  part  of  their  understand- 
ing that  it  should  be  canceled.  It  was  canceled  in  fact, 
but  not  as  was  claimed  by  defendant  until  the  day  after 
the  delivery  of  its  policy.  Held,  that  the  first  policy  did 
not  constitute  other  insurance ;  that  its  cancelment  was  one 
of  several  steps  which  were  to  be  taken  to  complete  the 
second  insurance,  and  whether  taken  a  few  minutes  or  a 
few  hours  before  or  after  any  other  steps  necessary  to  being 
a  completed  contract  was  immaterial  if  all  were  taken  sub- 
stantially at  the  same  time  and  before  the  transaction  was 
considered  closed.  Continental  Ins.  Co.  v.  Horton,  28 
Mich.  173.     1873. 


OTHER  INSURANCE. 


219 


§  11.  If  company,  without  objection,  accepts  notice  of 
other  insurance  eight  months  after  their  policy  is  issued, 
and  the  other  policy  is  obtained,  it  is  a  waiver  of  a  condi- 
tion requiring  immediate  notice.  Farmers'  Ins.  Co.  v.  Tay- 
lor, 73  Pa.  342.     1873. 

§  12.  Company  is  estopped  from  setting  up  want  of 
written  consent  to  other  insurance  which  was  obtained  by 
assured  upon  its  request,  its  own  policy  being  reduced,  ana 
assured  having  delivered  the  policy  to  defendants'  agent 
for  purpose  of  having  consent  indorsed,  which  was  not 
done  through  his  neglect.  Cobb  v.  Ins.  Co.  of  N.  A.  11 
Kans.  93.     1873. 

§  13.  If  company  is  advised  by  its  agent  of  the  exist- 
ence or  obtaining  of  additional  insurance,  if  it  does  not  de- 
sire to  give  the  necessary  consent  and  remains  silent,  it  is 
estopped  from  insisting  upon  such  fact  as  a  defense.  Ins. 
Co.  v.  Lyons,  38  Tex.  253.     1873. 

§  14.  Other  insurance  must  be  by  the  same  person 
or  cover  the  same  interest  to  constitute  a  forfeiture.  Gil- 
christ V.  Gore  Mutual  Ins.  Co.  34  Up.  Can.  Q.  B.  15. 
1873. 

§  15.  Policy  was  originally  issued  $5,000  on  stock  of 
bides  and  leather  May  2d,  1871.  It  was  so  written  by 
mistake  of  the  company's  clerk.  Error  was  not  discov- 
ered until  June  3d,  when,  upon  application  of  assured, 
company  made  the  following  indorsement,  "  1871,  June 
3d,  after  this  date  this  policy  covers  $2,500  on  stock 
and  $2,500  on  building."  Held,  that  testimony  of  the 
mistake  was  admissible,  and  that  the  indorsement  did 
not  create  a  new  contract  of  insurance,  making  it  "  other 
insurance"  within  meaning  of  provision  of  another  policy 
containing  a  provision  against  subsequent  insurance. 
Planters' 'Mut.  Ins.  Co.  v.  Deford,  38  Md.  382.     1873. 

§  16.  Assignee's  ignorance  of  other  insurance  by  as- 
sured cannot  deprive  company  of  benefit  of  condition  in 
regard  to  other  insurance.  Dickson  v.  Provincial  Ins.  Co. 
24  Up.  Can.  C.  P.  157.     1874. 


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220 


OTHER  INSURANCE. 


§  17.  Assured  held  a  policy  containing  a  condition 
that  if  assured  should  have  any  other  insurance  (whether 
valid  or  not)  without  consent,  it  should  be  void.  With, 
out  surrendering  or  canceling  this  policy  he  ^^I'ocured 
another  from  a  second  company,  which  also  contained 
a  similar  condition  against  other  insurance.  Held,  that 
the  first  policy  remained  in  force,  as  the  second  never  had 
any  validity,  and  the  plaintiff  could  not  therefore  recover. 
"Whether  the  words  "  valid  or  not "  in  the  first  policy  are 
not  void  for  repugnancy,  query  f  Gee  v.  Ins.  Co.  55  N. 
H.  65.  1874.  8.  p.  Allison  v.  Phoenix  Ins.  Co.  3  Dill. 
480.  1873.  Sutherland  v.  Old  Dominion  Ins.  Co.  31 
Grat.  176.  1878.  Contra,  Kennedy  v.  Ins.  Co.  6  Ins.  L. 
J.  359.     1877.    Tenn. 

§  1 8.  Upon  an  issue  as  to  the  existence  of  other  in- 
surance and  invalidity  of  policy  on  account  of  it,  a  let- 
ter containing  notice  of  the  existence"  of  such  other  insur- 
ance at  the  time  of  the  delivery  of  the  policy  cannot  be 
read  in  evidence  upon  proof  of  its  delivery  to  a  person  in 
the  ofiice  of  defendant's  agent,  but  who  is  not  called  as  a 
witness  or  shown  in  any  manner  to  be  connected  with 
such  agent  or  the  company,  both  the  company  and  its 
agent  swearing  that  they  never  received  such  letter. 
Sun  Ins.  Co.  v.  Earle,  29  Mich.  406.     1874. 

§  19.  Condition  against  obtaining  subsequent  insur- 
ance is  valid  and  will  be  enforced.  Phoenix  Ins.  Co.  v. 
Midi.  Southern  R.  R.  Co.  28  Ohio,  69.     1875. 

§  20.  A  marine  policy  cannot  be  claimed  to  be  other 
insurance  when  assured  could  not  recover  the  loss  upon 
it.  Australian  Agricultural  Company  v.  Sanders,  L.  R  10 
C.  P.  668.     1875.' 

§  21.  When  policy  contains  condition  against  other 
insurance  it  is  not  avoided  by  an  allec^ed  contract  for 
other  insurance  shown  to  be  invalid.  Knight  v.  Eureka 
Fire  Ins.  Co.  26  Ohio,  664.     1875. 

§  22.  Policy  issued  to  one  of  tenants  in  common, 
without  stating  joint  ownership,  is  other  insurance  with- 


OTHER  INSURANCE. 


221 


in  meaning  of  clause  relating  thereto  in  another  policy, 
coverino'  joint  interest.  Pitney  v.  Glen's  Falls  Ins.  Co.  65 
N.Y.e."  1875. 

8  23.  Other  insurance  to  avoid  policy  must  be  upon 
same  interest.  Roos  v.  Merchants'  Mut.  Ins.  Co.  27  La.  Ann. 
409.     1875. 

§  24.  At  time  of  fire  there  were  two  policies  covering 
the  same  property,  obtained  at  different  times,  both  con- 
taining condition  against  ol'ier  insurance  without  assent  of 
the  company,  and  neither  containing  such  consent.  Held^ 
in  a  suit  upon  the  fii'st  policy,  that  the  second  being  in- 
valid by  reason  of  existence  of  first  not  consented  to,  by 
legal  intendment  there  was  no  second  insurance  and,  there- 
fore, no  avoidance  of  the  first  policy.  Nor  is  the  fact  that 
assured  receives  payment  from  the  second  company  im- 
portant or  material  in  this  connection ;  assured  is  not 
thereby  estopped  from  asserting  that  there  was  no  valid 
insurance.  Thomas  v.  Builders'  Mut.  Ins.  Co.  119  Mass. 
121.     1875. 

§  25.  Existence  of  other  insurance  may  be  proved 
by  parol  evidence.  Knickerbocker  Ina  Co.  v.  Gould,  80 
111.388.     1875.  •• 

§  26.  Statute  provided  that  it  should  be  void  in  case 
of  other  insurance  ;  that  upon  giving  written  notice  to  the 
company  of  the  obtaining  of  other  insurance  that  it 
should  l)e  deemed  as  assented  to  unless  the  company 
should,  within  two  weeks  after  the  receipt  of  such  no- 
tice, notify  the  party  in  writing  of  its  dissent.  On  the 
5th  instant  notice  was  given  of  other  insurance.  The 
fire  broke  out  at  10  p.  m.  on  the  evening  of  the  19th. 
Hdd^  that  the  company  had  fourteen  days  ending  on  and 
including  the  19th  day  to  dissent,  and  that  the  loss  hav- 
ing occurred  within  the  time  limited  for  the  exercise  of 
the  option  of  the  company,  {)laintiff  could  not  recover. 
McCrea  v.  Waterloo  Mut.  Ins.  Co.  26  Up.  Can.  C.  P.  431. 
1876. 

§  27.     Statute  provided  that  whenever  any  notice  of 
the  existence  of  other  insurance  was  received  by  the  com- 


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OTHBB  IXSUBANOE. 


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pany,  that  it  should  be  deemed  assented  to  unless  within 
two  weeks  after  its  receipt  company  should  in  writing 
notify  the  assured  of  its  dissent.  Held,  that  notwith- 
standing  the  two  weeks  may  not  expire  until  after  a  loss 
notice  must  be  given  before  it.  Fair  v.  Niagara  District 
Mut.  Ins.  Co.  26  Up.  Can.  C.  P.  398.     1876. 

r^  §  28.  To  establish  defense  of  other  insurance  it  must 
be  established  that  the  policy  covers  the  same  property. 
Hazard  v.  Canada  Agricultural  Ins.  Co.  39  Up.  Can.  Q.B 
419.     1876. 

§  29.  If  other  policy  covers  a  part  only  of  the  same 
property  insured,  it  is  other  insurance.  Billington  v. 
Canadian  Mutual  Fire  Ins.  Co.  39  Up.  Can.  Q.  B.  433. 
1876. 

§  30.  When  policy  gives  permission  for  $3,000  otiier 
insurance  it  must  be  assumed  that  consent  is  not  required 
to  be  any  more  definite.  In  this  respect  policy  furnishes 
its  own  rule  of  construction.  Westchester  Fire  Ins.  Co.  v. 
Earl,  33  Mich.  143.     1876. 

§  31.  Under  the  statute  (Me.),  R.  S.  ch.  49,  sec.  19, 
the  existence  of  other  insurance,  to  be  effectual  as  a  de- 
fense, must  be  shown  to  have  materially  increased  the  risk. 
Lindley  v.  Union  Ins.  Co.  65  Me.  368.     1876. 

§  32.  When  statute  requires  receipt  of  notice  of  other 
insurance,  assured  must  not  only  prove  that  he  sent  such 
notice  but  that  it  was  actually  received.  Lyons  v.  Manu- 
facturers' Ins.  Co.  28  Up.  Can.  C.  P.  13.     1877. 

§  33.  A  policy  which  has  been  surrendered  to  a  local 
agent,  with  mutual  intent  that  it  be  surrendered  and  can- 
celed, and  at  the  same  time  he  is  directed  to  obtain  a  pol- 
icy from  another  company  in  place  of  it,  which  he  does, 
in  a  suit  upon  the  latter  the  former  cannot  be  considered 
as  other  insurance.  Train  v.  Holland  Purchase  Ins.  Co.  68 
N.  Y.  208.    1879. 

§  34.  When  company,  by  mistake  or  intent,  indorses 
permission  for  $6,250  other  insurance  instead  of  $8,000,  it 


OTHER  IKSUSANCE. 


223 


is  estopped  to  insist  upon  the  defense  of  invalidity  of  its 
policy  on  account  of  the  existence  qf  the  excess  of  the  in- 
surance over  the  amount  so  written.  Greene  v.  Equitable 
Fire  Ins.  Co.  11  K.  1.434.     1877. 

§  35.  Policy  required  written  consent  to  be  indorsed 
thereon  in  case  of  other  insurance,  otherwise  to  be  void. 
In  reply  to  a  letter  sent  by  assured  to  agent  of  the  com- 
pany who  issued  the  policy,  the  latter  said :  "  We  will,  of 
course,  allow  other  concurrent  insurance  with  the  Alle- 
mania  policy,  and  will  also  place  you  more  insurance  at 
same  rate  that  we  charged  you  before,  and  do  it  in  A 1 
company  or  companies.  Trusting  to  hear  from  you  at 
your  earliest  convenience,  we  remain,  «fec."  Held^  that  the 
correspondence  between  the  parties  could  not  take  the 
place  of  the  consent  required  by  the  terms  of  the  policy, 
which  became  absolutely  void  upon  obtaining  additional 
insurance  without  consent.  Allemania  Fire  Ins.  Co.  v. 
Kurd,  37  Mich.  11.     1877. 

8  36.  The  motive  or  the  intention  of  the  party  in  ob- 
taining additional  insurance  is  immaterial  when  such  fact 
is  relied  upon  as  a  defense  to  defeat  an  action  upon  an- 
other policy.  Pennsylvania  Fire  Ins.  Co.  v.  Kittle,  39 
Mich.  51.     1878. 

§  37.  The  materiality  of  a  representation  in  regard  to 
the  existence  of  other  insurance  is  proper  to  be  submitted 
to  the  jury.  Parsons  v.  Citizens'  Ins.  Co.  43  Up.  Can.  Q. 
B.  261.     1878. 

8  38.  Other  insurance,  to  render  policy  void,  must  be 
legal  insurance,  and  the  true  issue  in  such  a  case  is  whether 
the  policy,  not  on  its  face  but  on  all  the  facts  legally  in 
evidence,  is  binding  upon  the  insurer.  Dahlberg  v.  St. 
Louis  Mut.  Ins.  Co.  6  Mo.  App.  121.     1878. 

§  39.  There  is  no  breach  of  condition  against  subse- 
quent insurance  by  the  existence  of  a  second  policy  which 
is  void  by  reason  of  conditions  contained  therein ;  such 
condition  contemplates  subsequent  valid  insurance,  and  is 
not  broken  by  an  attempt  to  obtain  further  insurance 


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224 


OTHER  INSURANCE. 


which  is  void  by  its  terms.    Ins.  Co.  v.  Holt,  35  Ohio,  189 

1878. 

§  40.  Compromise,  settlement  and  payment,  on  a  sub- 
sequent  void  policy,  is  not  a  matter  of  defense  to  an  actioa 
on  a  prior  policy.     Ins.  Co.  v.  Holt,  35  Ohio,  189.     1878. 

§  41.  A  condition  aojainst  subsequent  insurance  ig 
not  applicable  to  an  invalid  contract  tor  other  and  addi- 
tional  insurance,  and  a  policy  is  not  voided  by  an  abortive 
attempt  to  make  other  insurance  which  was  never  com- 
pleted or  effected.  If  the  second  cannot  be  enforced,  it  is 
no  breach  of  the  condition.  Sutherland  v.  Old  Doniiuiou 
Ins.  Co.  31  Grat.  176.     1878. 

§  49.  Adjuster,  after  investigation  of  a  loss,  made  an 
offer  of  compromise  $375,  and  at  same  time  objected  to 
the  existence  of  other  insurance.  Offer  being  declined  he 
went  away,  and  soon  after  wrote  to  the  assured  that  he 
might  go  on  and  make  out  his  proofs  and  the  matter 
would  then  be  taken  into  consideration.  Subsequent  cor- 
respondence took  place  respecting  the  proofs,  the  adjuster 
demanding  more  particularity  in  what  was  furnished,  and 
it  was  not  until  six  months  after  the  offer  of  settlement 
was  made  that  he  informed  the  assured,  who  meantime 
had  been  endeavoring  to  make  the  proofs  satisftictory,  that 
in  addition  to  the  objections  heretofore  made  the  d  fond- 
ant would  insist  upon  forfeiture  because  of  the  •  id  in- 
surance. Held^  tiiat  evidence  justified  a  fi  by  the 
jury  of  a  waiver  of  the  defense  founded  upon  ;  existence 
of  other  insurance.  Pennsylvania  Fire  Ins.  Ca,  v.  Kittle, 
39  Mich.  51.     1878. 

§  4.S.  Policy  containing  usual  condition  against  other 
insurance  and  alienation  was  assigned  to  M.,  with  consent 
of  the  company.  M.,  after  a  loss,  assigned  to  plaintill'. 
Afterwards  the  assured  encumbered  the  propei'ty  by  moit- 
gage,  obtained  other  insurance,  and  then  sold  the  property 
subject  to  the  mortgage.  Held,,  that  policy  was  voided; 
that  plaintiff"  could  not  recover.  Kanady  v.  Goi'e  District 
Mut.  Fire  Ins.  Co.  44  Up.  Can.  Q.  B.  201.     1879. 


OTHBB  INSURANCE. 


225 


8  44.  The  validity  of  a  policy  claimed  to  be  other  in- 
surance cannot  be  tried  in  a  suit  against  another  company, 
specially  when  the  former  company  has  admitted  its  lia- 
bility and  paid  the  loss.  Gauthier  v.  Waterloo  Ins.  Co. 
44  Up.  Can.  Q.  B.  490.     1879. 

§  45.  When  assured  holds  a  certificate  of  insurance 
subject  to  all  the  terms  and  conditions  of  a  policy  as  usu- 
ally issued,  assured  is  bound  by  such  terms  and  conditions, 
and  if  the  policy  contains  a  clause  against  other  insurance, 
the  fact  that  agent  knew  that  there  was  other  insurance, 
without  knowing  its  amount,  will  not  estop  company  from 
insisting  upon  the  fact  as  a  defense,  and  policy  will  not 
be  reformed  on  assured's  application  by  making  the  proper 
indorsement  of  consent.  Billington  v.  Provincial  Ins.  Co. 
3  Can.  Sup.  182;     1879. 

§  46.  Assured,  being  an  illiterate  man,  was  told  and 
induced  to  believe  by  an  insurance  agent  that  his  policy 
with  defendant  had  expired,  and  upon  such  representation 
received  from  suoh  agent  an  interim  receipt  for  thirty  days 
for  other  insurance  by  such  agent  in  another  company. 
Fire  happened  within  thirty  days.  The  agent  then  ascer- 
taining that  defendant's  policy  had  not  expired,  withdrew 
plaintiff's  application  for  the  second  insurance  and  received 
interim  receipt  from  him.  Held^  that  condition  in  defend- 
ant's policy  in  relation  to  other  insurance  was  nevertheless 
broken,  and  that  plaintiff  could  not  recover.  Gauthier  v. 
Waterloo  Ins.  Co.  44  Up.  Can.  Q.  B.  490.     1879. 

§  47.  Subsequent  insurance,  effected  by  a  mortgagee 
in  another  company  in  the  assured's  name,  is  not  other  in- 
surnnce  when  it  is  effected  without  any  authority  from  the 
assured  and  without  his  knowledge,  subsequent  adoption 
or  ratification.  Sauvey  v.  Isolated  Ins.  Co.  44  Up.  Can. 
Q.  B.  523.     1879. 

§  48.  A  policy  of  company  which  has  not  complied 
with  statute  governing  its  admission  to  the  State  and  au- 
thority to  transact  business,  is  "  other  insurance,"  and  can- 
not be  claimed  to  be  void.  Behler  v.  German  Mut.  Ins. 
Co.  68  lud.  347.  1879. 
Vol.  II.— 15 


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226 


OTHER  INSURANCE. 


§  49.  Policy  was  issued  by  defendant  to  one  Merrill, 
loss  payable  to  plaintiff  as  mortgagee,  and  contained  usual 
clause  against  other  insurance.  It  expired  March  6, 1877, 
and  was  renewed.  On  March  £,  1877,  plaintiff  procured 
of  another  company  a  policy  insuring  the  same  property 
in  name  of  Merrill,  loss  payable  to  him  as  mortgagee. 
Merrill  had  no  knowledge  of  this  second  policy  until  after 
the  fire.  The  mortgage  contained  clause  authorizing 
plaintiff  to  procure  insurance  in  case  of  owner's  default  to 
iceep  property  insured.  The  proofs  of  loss  were  executed 
by  Merrill  at  plaintiff's  request  for  the  second  company. 
Held,  that  plaintiff  was  not  Merrill's  agent  in  procuring 
the  second  policy;  that  the  clause  in  mortgage  was  not 
operative  until  some  default  was  shown  on  Merrill's  part, 
which  could  only  be  after  notice  or  demand ;  that  there 
was  no  ratification  by  Merrill  in  the  execution  of  the 
proofs ;  that  the  second  policy  was  not  other  insurance 
within  meaning  of  policy  procured  by  Merrill.  Titus  v. 
Glen's  Falls  Ins.  Co.  81  j^.  Y.  410.     1880. 

§  50.  Agent  of  company  and  the  assured  acting  under 
a  mutual  misapprehension  as  to  existence  of  prior  insur- 
ance, both  in  good  faith  assuming  tha<-  property  was  not 
insured,  and  agent  wrote  a  policy  whica  remained  in  his 
office  until  after  the  fire,  when  it  was  marked  "canceled." 
In  a  suit  upon  prior  policy,  Held,  that  the  second  policy 
was  not  other  insurance.  Wilson  v.  Queen  Ins.  Co.  10  Ins. 
L.  J.  302.     1880.     U.  S.  Circuit,  Pa. 

§  51.  When  company  sends  its  policy  to  its  soliciting 
agent  for  purpose  of  delivery  to  the  assured,  and  it  is  de- 
livered with  the  knowledge  of  such  agent  of  the  existence 
of  other  insurance,  condition  in  policy  in  regard  to  other 
insurance  is  waived  or  the  company  is  estopped  from  in- 
sisting upon  it  as  a  defense.  Brandup  v.  St.  Paul  Ins.  Co. 
10  Ins.  L  J.  228.     1880.     Minn. 

§  52.  Two  policies  were  obtained  at  different  times 
and  both  contained  condition  against  other  insurance.  In 
an  action  brought  upon  the  one  first  obtained,  it  was 
claimed  that  the  second  w^ s  absolutely  void,  and  left  the 
first  in  full  force.     Held,  that  v<he  second  insurance  was 


OTHER  INSURANCE. 


227 


Dot  void,  but  voidable  only  at  option  of  the  company ; 
and  that  if  it  was  void,  ah  initio,  that  fact  would  not  re- 
lieve the  asiiured  from  forfeiture  from  violation  of  stipula- 
tion in  first  policy  against  additional  insurance.  Suggs  v. 
Liv.,  L.  and  G.  Ins.  Co.  9  Ins.  L.  J.  657.     1880.    Ky. 

§  53.  A  policy  procured  by  assured  which  is  invalid' 
by  reason  of  breach  of  some  condition  contained  therein 
is  not  other  insurance.  Nor  does  the  fact  that  company 
compromised  with  and  paid  the  assured  avail  the  defend- 
ant m  a  suit  upon  the  prior  policy  wherein  such  defense  is 
set  up.  Firemen's  Ins.  Co.  v.  Holt,  9  Ins.  L.  J.  212.  1880. 
Ohio. 

§  54.  When  policy  provides  that  notice  of  other  in- 
surance shall  be  given  in  writing,  and  shall  be  consented 
to  in  writing  by  the  secretary,  and  that  no  other  notice 
shall  be  bindiag  or  have  any  force  against  the  company, 
knowledge  of  an  agent  cannot  be  considered  as  an  equiva- 
lent of  what  is  required.  Commonwealth  Fire  Ins.  Co.  v. 
Huntzinger,  10  Ins.  L.  J.  618.     1881.     Pa. 

§  55.  An  insurance  upor  another  interest  is  not  other 
insurance;  nor  does  an  invalid  policy  avoid  a  prior  policy 
of  the  same  assured  on  the  same  interest.  Wheeler  v. 
Watertown  Fire  Ins.  Co.  10  Ins.  L.  J.  354.    1881.    Mass. 

See  Agent,  §  50,  03,  09.  Application,  10.  Concealment,  4.  Contribu- 
tion, 15.  Estoppel,  1,  3,  8,  13,  25,  30,  31,  83,  37.  Evidence,  58,  73.  Mort- 
gagor and  Mortgagee,  26,  30,  33,  41.  Mutual  Company,  1,  07,  109.  Parol 
Contract,  8,  31,  41.  Pleading  and  Practice,  27.  Proofs  of  Loss,  13.  Re- 
formation, 1.  Renewal,  5.  Waiver,  2,  14,  18,  22,  30,  47,  51.  Warranty  and 
Representation,  14. 


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OVERVALUATION. 

§  1.  When  assured  states  a  certain  amount  to  be  "  the 
present  estimated  value,"  it  cannot  be  construed  that  he 
thereby  warrants  it  to  be  absolutely  true;  but  such 
representation  is  so  far  material  that  it  should  be  left  to  a 
jury  to  determine  whether  the  amount  stated  by  the 
plaintiff  was  a  fair  estimate  honestly  made  with  a  reason- 
able belief  in  its  truth.  Riach  v.  Niagara  District  Mutual 
Ins,  Co.  21  Up.  Can.  C.  P.  464.  1871.  Chaplin  v.  Pro- 
vincial  Ins.  Co.  23  Up.  Can.  C.  P.  278.     1873. 

§  2.  In  an  open  policy  an  overvaluation  in  obtaining 
it  is  immaterial.  Aurora  Fire  Ins.  Co.  v.  Johnson,  46  Ind. 
315.     1874. 

§  3.  If  assured  by  false  representations  obtains  insur- 
ance to  amount  of  two  thousand  dollars  on  a  valuation  of 
three  thousand  dollars  when  actual  value  does  not  exceed 
fifteen  hundred,  this,  of  itself,  vitiate3  the  policy  and  ren- 
ders it  void  absolutely.  Lycoming  Fire  Ins.  Co.  v.  Rubin, 
79  111.  402.     1875. 

§  4.  Policy  provided  that  any  untrue  or  inaccurate 
statement  in  an  application  or  plan  whether  intentional  or 
not  should  render  it  void.  By  another  condition  it  was 
provided  that  in  case  of  loss,  if  property  should  be  found 
by  arbitration  or  otherwise  to  have  been  overvalued  in 
survey  and  description  on  which  this  policy  is  founded, 
that  the  company  should  be  liable  only  for  such  propor- 
tion of  actual  value  as  the  amount  insured  should  bear  to 
the  value  ^iven  in  the  application.  Held,  that  the  first 
condition  did  not  apply  to  any  statements  as  to  value  in 
the  application,  which  were  governed  only  by  the  last  con- 
dition. Williamson  v.  Commercial  Union  Ins.  Co.  26  Up. 
Can.  C.  P.  591.    1876. 

§  5.  Unless  an  overvaluation  is  so  clearly  established 
as  to  show  that  it  is  either  the  result  of  a  mistake  or  a 
■willful  intention  to  deceive,  rather  than  the  estimate  of  a 


OVERVALUATION. 


229 


too  partial  and  sanguine  mind,  it  will  not  vitiate  the  pol- 
icy     Germania  Fire  Ins.  Co.  v.  Castesl,  7  Ins.  L.  J.  253. 

1877.    111. 

§  6.  An  excessive  valuation  does  not  avoid  the  policy 
unless  shown  to  have  been  excessive  to  the  !:nowledge  of 
the  applicant.  Parsons  v.  Citizens'  Ins.  Co.  43  Up.  Can. 
Q.B.  261.     1878. 

8  7.  When  policy  provides  that  an  overvaluation 
shall  void  it,  a  substantial  overvaluation,  such  as  would  not 
ordinarily  arise  from  a  difference  of  opinion  whether  hon- 
estly or  fraudulently  made  by  the  assured,  voids  the  pol- 
icy. This  is  by  reason  of  the  well  settled  principle  of  all 
contracts  that  what  the  parties  themselves  declare  material 
and  sufficient  to  render  the  contract  void  must  be  held 
material  and  of  such  effect  as  the  parties  intended.  Bou- 
telle  V.  Woi'cester  Fire  Ins.  Co.  51  Vt.  4.     1878. 

§  8.  Upon  a  question  of  good  faith  on  the  part  of  the 
assured  at  the  time  of  the  issue  of  the  policy  in  reference 
to  value,  offers  of  purchase  made  and  refused  afterwards 
are  inadmissible.  Wood  v.  Firemen's  Ins.  Co.  126  Mass. 
316.    1879. 

§  9.  Under  the  Maine  statute  in  case  of  an  overvalu- 
ation the  inquiry  is  not  as  to  the  effect  in  inducing  com- 
pany to  issue  a  policy,  but  whether  it  contributed  to  the 
loss  or  materially  increased  the  risk.  Fraud  is  not  an 
essential  element  of  such  defense.  Thayer  v.  Providence 
Ins.  Co.  70  Me.  531.     1880. 

§  10.  An  overvaluation  in  obtaining  a  policy  does 
not  avoid  it  unless  willful,  false,  and  fraudulent.  If  grossly 
overvalued  that  fact  may  be  properly  considered  by  jury 
as  evidence,  but  not  conclusive,  of  a  fraudulent  overvalu- 
ation. Citizens'  Fire  Ins.  Co.  v.  Short,  62  Ind.  316.  1878. 
8.  P.  Canada  Land  Co.  v.  Canada  Agricultural  Ins.  Co.  17 
Grant  Ch.  418.  1870.  Field  v.  Ins.  Co.N.  A..  6  Diss.  121. 
1874.  Pacand  v.  Queen  Ins.  Co.  21  L.  C.  Jurist,  111- 
18yG  Planters'  Ins.  Co.  v.  Myers,  55  Miss.  479.  1877. 
Continental  Ins.  Co.  v.  Ware,  9 'ins.  L.  J.  519.     1880.    Ky. 


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PAROL  CONTRACT. 


Farmers'  Ins.  Co.  v.  Meckes,  10  Ins.  L.  J.  707.  1880.  Pa 
Miller  v.  Alliance  Ins.  Co.  12  Rep.  4.  1881.  U.  S.  Circuit 
N.  Y. 

Sec  Application,  §  8.    Estoppel,  37.     Fraud  and  False  Swearing,  4.  War- 
ranty and  Representation,  15,  36,  44,  53,  56, 


PAROL  CONTRACT. 

§  1.  A  memorandum  sufficient  to  make  a  parol  con- 
tract of  insurance  will  be  presumed  to  be  made  under  the 
terms  and  conditions  of  the  policy  usually  issued  in  the 
office  where  such  memorandum  is  made.  State  Fire  Ins. 
Co.  V.  Porter,  3  Grant  Cas.  123.     1860. 

§  2.  Parol  contract  to  insure  sufficient  to  sustain  ac- 
tion. Hartford  Fire  Ins.  Co.  v.  Wilcox,  57  111.  180. 
1870. 

§  3.  When  charter  and  by-laws  provides  in  sub- 
stance that  all  applications  and  contracts  of  insurance 
Bhall  be  in  writing  and  that  the  latter  shall  be  signed  by 
the  president,  company  cannot  be  bound  by  a  parol  con- 
tract.    Henning  v.  U.  S.  Ins.  Co.  47  Mo.  425.     1871. 

§  4.  A  parol  contract  of  insurance  by  agent  is  con- 
sidered as  a  contract  for  insurance  upon  the  usual  terms 
and  conditions  as  expressed  in  a  policy  agent  is  empow- 
ered and  accustomed  to  insure.  IIubl)ard  v.  Hartford 
Fire  Ins.  Co.  33  Iowa,  325.     1871. 

§  5.  An  agent,  clothed  with  full  autliority  to  make 
all  necessary  surveys,  to  determine  the  risk,  its  duration, 
and  the  rate  of  premium,  without  any  reference  to  consul- 
tation with  company  or  its  officers,  to  negotiate  and  con- 
clude all  the  terms  of  the  contract,  and  to  consummate  it 
by  filling  up  and  countersigning  a  policy  which  has  been 
delivered  to  him  in  blank  signed  by  the  president  and 


PAROL  CONTRACT. 


231 


secretary,  may  bind  the  company  by  a  parol  agreement. 
Ellis  V.  Albany  City  Ins.  Co.  50  N.  Y.  402.  1872.  And 
see  Taylor  v.  Germania  Ins.  Co.  2  Dill.  282.     1872. 

§  6.  Company  issued  certificate  of  insurance  which 
contained  reference  as  follows :  "  under  and  subject  to  the 
conditions  of  policy  number  780."  Action  was  brought 
upon  the  certificate.  Held^  that  a  verdict  upon  proof  of 
the  certificate  alone  could  not  be  sustained ;  that  the  pol- 
icy was  part  of  the  contract  and  should  have  been  proved. 
Underwriters'  Agency  v.  Sutherlin,  46  Ga.  652.    1872. 

§  7.  On  the  9th  of  August,  1871,  applicatior  was 
made  for  insurance  to  the  amount  of  $6,000,  on  a  stock  of 
dry  goods  contained  in  a  certain  building.  On  the  follow- 
ing day  assured  gave  a  written  notice  to  the  agent  that 
they  had  added  two  flats  over  the  store  adjoining  and  that 
part  of  their  stock  was  then  in  these  new  flats.  The  agent, 
a  few  days  after,  inspected  the  premises  and  told  the  as- 
sured that  the  rate  would  have  to  be  increased  on  account 
of  the  connection  being  made  with  the  adjoining  building 
by  large  doorways.  On  the  29th  of  August  agent  wrote 
to  the  company  informing  them  that  assured  had  cut  an 
opening  into  the  adjoining  building,  also  that  he  inspected 
the  premises  and  that  he  bad  notified  the  assured  that  the 
rate  would  have  to  be  increased  to  one  per  cent.  Subse- 
quently assured  paid  the  agent  the  increased  amount  of 
premium  and  on  the  23d  of  September  the  agent  gave  them 
an  interim  receipt  dated  4th  of  August  for  amount  of  prem- 
ium for  insuring  $6,000  on  stock  for  one  year  from  that 
date ;  if  the  insurance  was  approved  of  a  policy  would  be 
delivered,  or  if  declined  the  amount  received  would  be  re- 
funded less  the  premium  for  the  time  so  insured.  Assured 
afterwards  received  ^  policy  from  the  agent  which,  while 
it  noted  the  opening  between  the  two  houses,  did  not  in 
terms  cover  the  stock  of  the  assured  in  the  two  flats  ad- 
joining. The  policy  bore  date  of  9th  August,  1871.  Fire 
occurred  11th  March,  1872,  some  of  the  goods  damaged 
and  destroyed  being  partly  in  the  store  first  occupied  by 
the  assured,  and  partly  in  the  two  added  flats.  Defend- 
ant having  refused  to  pay  for  the  loss  sustained  on  goods 


,i.     I 


1m 


232 


PAROL  CONTRACT. 


V  I 


11  , 


in  the  latter  portion,  action  was  brougbt  hy  the  plaintiffs 
for  recovery.  Held,  that  there  was  a  sufficient  contract  of 
insurance  covering  the  goods  in  the  added  flats,  and  that 
assured  was  not  estopped  or  prevented  from  having  a  re- 
formation  of  his  policy  from  the  fact  of  his  acceptance  of 
it,  supposing  that  it  really  carried  out  the  agreement. 
Liv.,  Lond.  &  Globe  Ins.  Co.  v.  Wyld,  1  Can.  Sup.  604 
1877.    Affirming  33  Up.  Can.  Q.  B.  284.     1873. 

§  8.  When  assured  holds  a  certificate  or  temporary 
written  agreement  for  insurance,  it  is  not  necessary  that 
an  indorsement  of  other  insurance  should  be  made  thereon 
when  suit  is  brought  upon  such  an  instrument.  Daytoa 
Ins.  Co.  v.  Kelly,  24  Ohio,  345.     1873. 


provides  that 
be  subscribed 
may  be  desig- 
secretary  does 
contract  of  in- 
Dayton  Ins. 


§  9.  The  fact  that  company's  charter 
all  policies  or  contracts  of  insurance  shall 
by  the  president,  or  such  other  officers  as 
nated  by  the  directors,  and  attested  by  the 
not  prevent  the  making  of  a  sufficient  parol 
surance  by  an  agent  binding  the  company. 
Co.  V.  Kelly,  24  Ohio,  345.     1873. 

§  10.  To  sustain  a  suit  in  equity  to  compel  the  issue 
of  a  policy,  there  must  be  a  preponderance  of  evidence 
that  the  contract  was  made,  and  that  premium  was  paid 
or  credit  given.  Dinning  v.  Phoenix  Ins.  Co.  68  111.  414. 
1873. 

§  11.  In  an  action  upon  a  parol  contract  of  insurance 
wherein  as  a  part  of  the  relief  prayed  for  the  court  is  asked 
to  decree  that  the  company  issue  and  deliver  its  policy  in 
accordance  with  such  contract,  there  can  be  no  recovery 
without  the  plaintiff  showing  a  compliance  with  the  con- 
ditions contained  in  said  policy  precedent  to  the  loss 
being  due  and  payable.  McCann  v.  ^tna  Ins.  Co.  3  Neb. 
198.     1874. 

§  12.  An  action  to  compel  the  issue  and  delivery  of 
a  policy  upon  a  parol  contract  of  insurance  cannot  be  sus- 
tained unless  there  is  conclusive  proof  that  such  contract 
was  actually  made.  If  there  is  any  doubt  suit  should  be 
dismissed.     McCann  v.  ^tna  Ins.  Co.  3  Neb.  198.     1874. 


PAROL  CONTRACT. 


233 


§  13.  Although  in  Georgia  the  code  requires  con- 
tracts of  insurance  and  alterations  to  be  expressed  in  writ- 
ingj  equity  will  sustain  a  contract  by  parol  on  the  ground 
of  estoppel.  A  verbal  consent  of  company's  agent  to  re- 
moval does  not  present  a  proper  case  for  such  relief. 
Simonton  v.  Liv.,  L.  and  G.  Ins.  Co.  51  Ga.  76.  1874. 
Must  be  in  writing  and  the  time  expressed.  Clark  v. 
Brand,  62  Ga.  23.     1878. 

§  14.  When  company's  charter  expressly  requires 
contracts  of  insurance  to  be  in  writing  there  cannot  be  a 
binding  parol  contract.  Haslett  v.  Allegheny  Ins.  Co.  4 
Ins.L.  J.  372.     1874.    Pa. 

§  15.  A  decree  for  the  issue  and  delivery  of  a  policy 
in  accordance  with  a  parol  contract  and  a  recovery  for  the 
amount  of  the  loss  may  be  had  in  one  action.  Gerrish  v. 
Ins.  Co.  55  N.  H.  355.     1875. 

§  16.  A  parol  contract  of  insurance  indefinite  as  to 
time  and  indefinite  as  to  rate  of  premium  is  incapable  of 
enforcement.     Strohn  v.  Hartford  Fire  Ins.  Co.  37  Wis. 

625.    1875. 

§  17.  Where  assured  applied  for  insurance  to  an 
agent  and  received  a  receipt  tor  the  premium,  containing  a 
brief  description  of  the  property  and  risk,  Held^  that  as- 
sured's  rights  were  governed  by  such  a  policy  as  he  was 
entitled  to  have  upon  his  application,  and  that  hence  the 
limitation  clause  in  such  a  policy  was  operative,  notwith- 
standiug  his  ignorance  of  its  existence.  De  Grove  v.  Met- 
ropolitan Ins.  Co.  61  N.  Y.  594.     1875. 

§  18.  While  an  oral  contract  of  insurance  is  binding 
and  will  be  enforced  (Strohn  v.  Hartford  Ins.  Co.  33  Wis. 
648.  1873.  Hartford  Ins.  Co.  v.  Farrish,  73  111.  166. 
1874),  every  essential  element  must  be  established  by 
clear  and  satisfactory  evidence.  Franklin  Ins.  Co.  v.  Tay- 
lor, 5  Ins.  L.  J.  671.  1870.  Miss.  Weeks  v.  Lycoming 
Ins.  Co.  7  Ins.  L.  J.  552.     1878.     U.  S.  Circuit,  Vt. 

§  19.  Series  of  negotiations  resulting  in  nothing  more 
than  an  understanding  as  to  terms  upon  which  party 
might  insure  in  case  he  should  deem  it  proper  to  do  so, 


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rA.ROL  CONTRACT. 


and  assurance  by  him  to  the  agent  that  he  would  accept 
his  terms,  without  taking  any  steps  to  carry  out  this  as- 
surance until  after  loss  has  been  sustained,  does  not  con- 
stitute  a  sufficient  parol  contract  of  insurance.  In  such 
cases  the  agreement  should  be  established  by  a  clear  pre- 
ponderance of  evidence.  In  controversies  arising  out  of 
agreements  to  renew  less  strictness  of  proof  may  be  re- 
quired. Continental  Ins.  Co.  v.  Jenkins,  5  Ins.  L.  J.  514 
1876.     Ky. 

§  20.  An  interim  receipt  provided  that  the  assured 
should  be  considered  insured  until  otherwise  notified 
either  by  notice  mailed  from  the  head  office  or  by  the 
a^ent,  within  one  month  from  its  date,  when,  if  de- 
chned,  receipt  should  be  void  and  should'  be  surren- 
dered. IleCd^  that  if  the  assured  was  not  notified  with- 
in fhe  period  prescribed  of  the  decision  of  the  company, 
that  there  was  an  insurance  for  one  year  binding  upon 
the  company  upon  the  same  terms  and  conditions  as 
were  contained  in  the  policies  as  ordinarily  used. 
Hawke  v.  Niagara  District  Ins.  Co.  23  Grant  Ch.  139. 
1876. 

§  21.  By-law  provided  that  certain  circumstances 
would  vitiate  the  policy  unless  notice  should  be  given 
and  consent  indorsed  on  the  policy.  Held^  that  policy 
meant  insurance  or  some  equivalent,  and  that  plaintiff 
was  not  exonerated  from  giving  notice  because  there  was 
no  policy  upon  which  to  indorse  consent,  he  holding  an 
interim  receipt  upon  which  it  might  have  been  indorsed. 
Hawke  v.  Niagara  District  Ins.  Co.  23  Grant  Ch.  139. 
1876. 

§  22.  A  person  dealing  with  a  New  York  company 
in  Massachusetts,  cannot  be  presumed  to  know  terms  of 
its  charter,  which  cannot  limit  an  agent's  authority  to 
make  a  binding  parol  contract  of  insurance.  Relief  Fire 
Ins.  Co.  V.Shaw,  6  Ins.  L.  J.  713.     1876.     U.  S.  Supreme. 

§  23.  Terms  of  insurance  were  agreed  upon  between 
the  owner  and  agent  of  company  authorized  to  receive 
applications  and  issue  certificates  during  correspondence 


PAROL  CONTRACT. 


235 


only.  No  certificate  waa  given ;  assured  told  the  agent 
that  when  he  had  policy  ready  to  bring  it  to  him  and  he 
would  settle.  Subsequently  owner  was  advised  by  agent 
that  policy  was  ready  for  delivery  on  payment  of  the  pre- 
mium. Assured  made  several  calls  upon  the  agent,  with 
money,  for  purpose  of  receiving  the  policy  and  paying  the 
premium,  but  each  time  not  finding  the  agent  in.  Final- 
k,  a  short  time  before  the  fire,  policy  was  canceled  by  the 
company  for  non-payment  of  the  premium.  Held,  that 
there  was  no  sufficient  oral  contract  for  insurance ;  that 
the  insurance  contemplated  by  the  parties  was  by  a  policy 
to  be  issued  upon  payment  of  the  premium.  Myers  v. 
Liverpool,  Lond.  and  G.  Ins.  Co.  121  Mass.  338.     18Y6, 

§  24.  It  is  sufficient  to  constitute  a  parol  contract  of 
insurance  if  one  party  proposes  to  be  insured  and  the  oth- 
er party  agrees  to  insure,  and  the  subject,  the  period,  the 
amount,  and  the  rate  of  insurance  is  ascertained  or  under- 
stood, and  the  premium  paid  if  demanded.  Eames  v. 
Home  Ins.  Co.  4  Otto,  629.     1876. 

§  25.  In  case  of  parol  contract  of  insurance,  it  will  be 
presumed  that  parties  contemplate  such  form  of  policy, 
containing  such  conditions  and  limitations  as  are  usual  in 
such  cases,  or  have  been  used  before  between  the  parties. 
Eames  v.  Home  Ins.  Co.  4  Otto,  629.     1876. 

§  26.  Equity  will  compel  the  issue  and  delivery  of  a 
policy  after  a  loss  where  there  has  been  a  valid  agreement 
ibr  one  before  the  loss,  and  will  enforce  payment  of  it  as 
if  made  in  advance.  Franklin  F.  Ins.  Co.  v.  Taylor,  52 
Miss.  441.     1876. 

§  27.  If  a  valid  contract,  by  parol,  in  the  form  set  up, 
is  pioved,  a  plaintiff  can  recover  at  law  the  same  damages 
as  if  he  were  suing  on  a  policy  issued  in  the  form  in 
which  it  was  agreed  to  be  issued.  Humphry  v.  Hartford 
Fire  Ins.  Co.  15  Blatch.  35,  511.     1878. 

§  28.  A  clerk  whose  duty  it  is  to  receive  applications, 
fill  out  policies  and  renewals,  mark  risks  for  surveyors, 
and  "  generally  attend  to  whatever  is  transacted  behind 


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PAROL  CONTRACT. 


the  counter,"  binds  company  by  a  parol  contract  of  insur- 
ance.    Cooke  V.  ^tna  Ins.  Co.  7  Daly,  555.     1878. 

§  29.  A  parol  contract  of  insurance  may  be  binding 
although  premium  is  left  uncertain  and  undetermined. 
Cooke  V.  ^tna  Ins.  Co.  7  Daly,  555.     1878. 

§  30.  An  interim  receipt  for  insurance  is  subject  to 
the  statutory  conditions  imposed  by  39  Vic.  ch.  24.  Par- 
sons V.  Queen  Ins.  Co.  43  Up.  Can.  Q.  B.  271.     1878. 

§  31.  It  is  not  essential  that  consent  to  the  existence 
of  other  insurance  should  be  indorsed  upon  an  interim  re- 
ceipt for  insurance.  Parsons  v.  Queen  Ins.  Co.  43  Up. 
Can.  Q.  B.  271.     1878. 

§  32.  A  binding  receipt  for  a  specified  period,  pend- 
ing submission  of  application,  cannot  be  extended  by 
implication.  In  absence  of  notice  by  company,  it  is  not 
liable  for  a  loss  occurring  after  limited  time.  Barr  v.  Ins. 
Co.  of  N.  A,  SI  Ind.  488.     1878. 

§  33.  An  agent  who  is  authorized  only  to  receive  and 
forward  applications,  deliver  policies  and  collect  premiums, 
cannot  bind  company  by  a  parol  contract  of  insurance. 
Assured  having  notice  that  the  agent  could  not  issue  pol- 
icy, that  his  application  must  be  forwarded  for  approval, 
is  bound  to  inquire  as  to  extent  of  agent's  authority,  and 
has  no  right  to  rely  upon  representation  of  the  latter  that 
it  is  "all  right,  <fec."  Fleming  v.  Hartford  Fire  Ins.  Co.  7 
Ins.  L  J.  281.     1878.     Wis. 

§  34.  Authority  to  execute  and  deliver  a  policy  of 
insurance  includes  authority  to  make  a  binding  parol  con- 
tract. Weeks  v.  Lycoming  Ins.  Co.  7  Ins.  L.  J.  552. 
1878.     U.  S.  Circuit,  Vt. 

§  35.  Testimony  was  that  the  assured  met  local 
agent  of  the  company  in  front  of  the  post  office,  and  said 
to  him :  " '  I  want  to  renew  that  insurance  of  mine ;  I  am 
going  away  to  be  gone  a  week  or  ten  days,  and  I  want  it 
done  before  I  leave.'  He  said  *  all  right.'  I  then  said, 
*  Mr.  Hopkins  offers  to  insure  my  property  at  two  per 


PAROL   CONTRACT. 


237 


>remium8. 


cent,  and  you  charged  me  two  and  a  half  last  year ;  I 
don't  want  it  in  those  local  companies ;  I  would  rather 
have  it  in  the  same  company  and  have  it  renewed ;  won't 
you  do  it  at  two  per  cent.  ? '  Answer,  '  I  will.'  I  said 
again, '  I  am  going  to  leave  for  Palmyra,  and  be  gone  for 
a  week  or  ten  days ;  is  there  anything  dse  you  want  me 
to  do  ? '  *  No ;  nothing  else  ;  I  have  the  description  in 
the  office,  and  will  attend  to  it.'  I  said,  '  Renew  the  old 
insurance  policy  for  the  same  as  it  was  before,  and  in  the 
same  company,  and  the  same  amount,'  and  he  said,  '  All 
right.'  I  went  away  that  day  and  returned  again  in  about 
ten  days  from  the  day  before  the  fire."  Held,  not  suffi- 
cient to  constitute  a  parol  contract  of  insurance.  Taylor 
V.  Phcenix  Ins.  Co.  47  Wis.  365.     1879. 

§  36.  When  contract  for  insurance  is  complete  and  a 
loss  occurs  before  issue  and  delivery  of  the  policy,  assured 
may  sustain  a  suit  in  equity  to  compel  issue  and  delivery 
of  the  policy.  Wooddy  v.  Old  Dominion  Ins.  Co.  31  Grat. 
362.    1879. 

§  37.  A  parol  contract  of  insurance  cannot  be  deemed 
to  have  merged  into  the  policy  where  the  latter  is  claimed 
not  to  conform  to  it,  especially  when  assured  has  no  knowl- 
edge of  the  terras  of  policy  until  after  the  loss.  Humphry 
v.  Hartford  Fire  Ins.  Co.  15  Blatch.  504.     1879. 

§  38.  There  is  no  rule  of  law  which,  in  cases  outside 
of  the  statute  of  frauds,  prevents  policy  from  being 
changed  by  parol,  or  which  requires  insurance  contracts  to 
be  in  writing.  Roger  Williams'  Ins.  Co.  v.  Carrington,  9 
Ins.  L.  J.  577.     1880.     Mich. 

§  39.  Charter  of  company  providing  that  all  policies 
issued  should  be  in  writing  does  not  prevent  a  sufficient 
and  valid  oral  contract  of  insurance.  Baile  v.  St.  Joseph 
Fire  Ins.  Co.  12  Rep.  366.     1881.     Mo. 

§  40.  When  company  institutes  an  action  to  have  its 
policy  declared  void  on  the  ground  that  it  was  issued 
after  the  loss  upon  an  alleged  parol  agreement  which  the 
assured  and  agent  knew  to  be  insufficient,  the  assured 


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may  set  up  in  his  answer  his  claim  under  the  policy,  and 
recover  the  amount  of  his  loss.  Revere  Fire  Ins.  Co.  v. 
Chamberlin,  10  Ins.  L.  J.  397.     1881.     Iowa. 

§  41.  When  company  has  failed  to  issue  a  policy, 
there  being  a  sufficient  parol  contract  of  insurance,  it  can- 
not avail  itself  of  condition  in  policy  requiring  written 
consent  to  other  insurance  indorsed  upon  it.  In  such  a 
case  mere  notice  of  other  insurance  is  sufficient.  And 
semble,  even  if  policy  is  issued  notice  to  agent  and  his 
verbal  consent  to  other  insurance  'estops  company  from 
setting  up  defense  on  ground  of  want  of  written  consent. 
Baile  v.  St.  Joseph  F.  and  M.  Ins.  Co.  1 0  Ins.  L  J.  657. 
1881.    Mo. 

§  42.  In  a  suit  brought  upon  a  parol  contract  of  in- 
surance, to  avoid  circuity  of  action,  equity  will  not  only 
decree  the  issue  of  a  policy,  but  award  judgment  for  the 
amount  due  under  it.  Baile  v.  St.  Joseph  F.  and  M.  Ins. 
Co.  10  Ins.  L.  J.  657.     1881.     Mo. 

§  43.  The  requisites  of  a  verbal  contract  of  insurance 
are  that  the  minds  of  the  parties  must  have  met  upon  all 
the  essentials  of  the  contract.  These  essentials  are  the 
parties,  the  subject-matter  of  insurance,  the  amount,  the 
limits  of  the  risk  including  its  duration  in  point  of  time 
and  extent  in  point  of  hazards  assumed,  the  rate  of  pre- 
mium, and  generally  all  the  circumstances  which  are 
peculiar  to  the  contract  and  distinguish  it  from  every 
other,  so  that  nothing  remains  to  be  done  but  to  fill  up 
the  policy  and  deliver  it  on  the  one  hand  and  pay  the  pre- 
mium on  the  other.  People's  Ins.  Co.  v.  Paddon,  8  Brad- 
well,  447.     1881. 

§  44.  When  minds  of  the  parties  have  met  upon  all 
the  essential  elements  of  the  insurance,  there  ia  a  sufficient 
parol  contract  binding  the  company  in  case  of  loss  with- 
out delivery  of  policy,  and  such  a  contract  is  not  void  by 
the  statute  of  frauds,  although  assured  expected  five  years' 
policy.  Van  Loan  v.  Farmers'  Mut.  Ins.  Co.  24  Hun,  132. 
1881. 

See  Agent,  §  23,  24,  5S,    Cancellation,  21.    ConBummation  of  Contract, 
13.    Other  Insurance,  43.     Proofs  of  Loss,  16,  67, 86.    Renewal,  2.    Risk,  22. 


PAYMENT    OF    LOSS. 

8  1.  The  limit  of  sixty  days  prescribed  for  loss  be- 
coming due  runs  from  the  time  of  furnishing  proof  origin- 
ally, and  not  from  time  of  a  subsequent  examination  of 
assured  had  at  the  instance  of  the  company.  Huchberger 
V.  Home  Ins.  Co.  5  Biss.  106.     1870. 

§  2.  Payment  of  a  partial  loss  operates  to  reduce  the 
amount  of  insurance.  Lattomus  v.  Farmers'  Mut.  Ins.  Co. 
3  Houston  (Del),  404.     1873. 

§  3.  The  delay  of  sixty  days  to  which  a  company  is 
entitled  after  notice  and  proofs,  is  a  substantial  right 
secured  by  contract,  not  merely  to  enable  it  to  prepare  to 
pay,  but  also  to  investigate  the  circumstances  under  which 
loss  occurred,  with  a  view  of  determining  whether  or  not 
the  loss  is  of  such  a  character  as  involves  an  obligation  to 
pay  at  all.  A  general  averment  that  plaintiff  nas  com- 
plied with  all  the  conditions  on  his  part  to  be  performed, 
does  not  show  that  the  time  has  passed,  and  that  loss  is 
due  and  payable.  Doyle  v.  Phoenix  Ins.  Co.  44  Cal.  264. 
1872. 

See  Construction,  §  5.    Examination,  1.    Proofs  of  Loss,  60,  78. 


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PLACE    OF    MAKING    CONTRACT. 

§  1.  Where  application  is  forwarded  from  one  State 
to  agent  of  company  in  anor,her  State,  and  policy  is  issued 
by  such  agent,  the  contract  must  be  governed  by  the  law 
of  the  latter  State.    Lamb  v.  Bowser,  7  Biss.  315.    1876. 

§  2.  When  policy  is  signed  by  the  officers  of  a  com- 
pany in  Missouri,  but  the  condition  is  attached  that  it 
shall  have  no  validity  until  countersigned  by  an  agent  in 
New  York,  where  the  policy  is  fully  executed  and  deliv- 
ered.  Held,  that  the  law  of  the  latter  State  governs  the 
rights  of  the  parties  under  the  contract.  Todd  v.  State 
Ins.  Co.  11  Phil.  Eep.  355.     1876. 

§  3.  When  an  application  for  insurance  is  accepted 
and  the  policy  mailed  in  a  certain  State  the  contract 
must  be  adjudged  to  have  been  made  in  that  State,  and 
the  contract  is  completed  when  the  offer  of  the  insured  is 
accepted  and  the  policy  deposited  in  the  post-office  by  the 
company,  properly  addressed  to  the  insured.  Northamp- 
ton Mutual  Ins.  Co.  v.  Tuttle,  1  i  Vroom,  L.  R.  476.    1878. 

Sec  Foreign  Company,  §  18,  2S,  39,  34.    Mutual  Company,  104,  114. 


(  I 


PLEADING  AND   PRACTICE. 

§  1.  A  pleading  that  does  not  aver  every  fact  to 
show  a  foif'eiture,  is  bad  on  demurrer.  Illinois  Ins.  Co.  v. 
Stanton,  57  111.  354.     1870. 

§  2.  A  juror  who  admits  a  prejudice  against  all  in- 
surance companies  is  not  competent  to  serve  in  that  capac- 
ity in  a  suit  where  an  insurance  company  is  a  party. 
Winnesheik  Ins.  Co.  v.  Schueller,  60  111.  465.     1871. 

§  3.  Performance  of  conditions  precedent  to  loss  being 
due  and  payable,  must  be  alleged  in  complaint  or  declara- 
tion. Rockford  Ins.  Co.  v.  Nelson,  65  111.  *15.  1872. 
Home  Ins.  Co.  v.  Duke,  43  Ind.  418.  1873.  Home  Ins. 
Co.  V.  Lindsey,  26  Ohio,  348.  1875.  Edgerly  v.  Farmers' 
Ins.  Co.  43  Iowa,  587.  1876.  Dolbier  v.  Agricultural 
Ins.  Co.  67  Me.  180.  1877.  Carberry  v.  German  Ins.  Co. 
51  Wis.  605.  1881.  Perry  v.  Phoenix  Ins.  Co.  12  Rep. 
584.    1881.    U.  S.  Circuit,  R.  I. 

§  4.  The  defense  of  existence  of  warranty  and  a 
breach  must  be  set  up  in  the  answer  to  be  available. 
Weed  V.  Schenectady  Ins.  Co.  7  Lans.  452.     1872. 

§  5.  A  specific  averment  of  an  insurable  interest  is 
not  necessary  in  the  declaration  under  the  Ohio  Code. 
People's  Fire  Ins.  Co.  v.  Heart,  24  Ohio,  331.     1873. 

§  0.  It  is  not  sufficient  to  allege  generally  a  refusal  to 
submit  to  an  examination  ;  the  answer  should  show  when 
and  by  whom  the  request  was  made,  that  it  was  made 
within  the  sixty  days,  and  time  and  place.  Aurora  Fire 
Ins.  Co.  V.  Johnson,  46  Ind.  315.     1874. 

§  7.  The  dissolution  of  a  corporation  terminates  an 
action  pending  against  it,  unless  continued  by  order  of  the 
court,  under  L.  1832,  ch.  295.  McCulloch  v  Norwood, 
58  N.  Y.  562.     1874. 

Vol.  II.-IO 


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Mm 


242 


PLEADING   AND  rBACTICE. 


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§  8.  Au  answer  setting  up  a  fraudulent  statement  of 
claim,  should  aver  to  whom  it  was  made.  Aurora  Fire 
Ins.  Co.  V.  Johnson,  46  Ind.  315.     1874. 

s^  0.     A  general  averment  "  that  plaintiff  duly  f"^'"' 
all  the  conditions  on   his  part  to  be  performed         ,ulli. 
cient  averment  under  practice  act  of  compliance  witli  all 
conditions  precedent.     Ferrer  v.  Home  Mut.   In.s.  Co.  47 
Cal.  41(5.     1874. 


§ 


10.  Where  a  condition  becomes  operative  only  in 
event  of  re(piest  in  writing,  the  answer  must  aver  such  re- 
quest. Aurora  Fire  Ins.  Co.  v.  Johnson,  46  Ind.  31^ 
1874. 

§  11.  An  answer  setting  up  defense  under  condition 
in  policy  requiring  assured  to  use  his  best  endeavors  to 
save  property  and  prevent  loss,  «fec.,  must  also  aver  that 
it  was  in  his  power  either  to  prevent  the  fire  or  loss  of 
property.  Aurora  Fire  Ins.  Co,  v.  Johnson,  46  Ind.  315. 
1874. 

§  12.  Waiver  must  be  pleaded  to  be  rendered  avail- 
able to  assured,  Martin  v.  Mutual  Fii'e  Ins.  Co.  3  Pugs- 
ley,  N.  B.  157.     1875. 

§  13.     Service  of  summons  without  the  State  by  i\iail 
is  authorized  by  66  Ohio  L.  327,  only  in  suits  on  policio 
outstanding  in   the   hands  of  a  resident  of  that  State, 
Heart  v.  Lycoming  Fire  Ins.  Co.  26  Ohio,  594.     1875. 

'  §  14.  When  there  are  exceptions  in  the  policy  which 
qualify  the  company's  liability  or  render  it  irresponsible 
in  certain  instances,  so  that  in  law  it  is  not  absolutely 
bound,  the  declaration  must  aver  such  exceptions,  al- 
though it  is  not  necessary  to  negative  them.  Simmons  v. 
Ins.  Co.  8  W.  Va.  474.    "1875. 

5$  15.  When  policy  refers  to  an  application  which  in 
legfll  effect  may  be  a  warranty,  it  is  not  necessary  to  set 
out  in  the  declaration  the  warranties  contained  in  the 
application  in  whole  or  in  part.  Simmons  v.  Ins.  Co.  8 
1875. 


application 
W.  Va.  474. 


PLEADING  AND  PKACTICE. 


243 


^  16.  An  allegation  of  a  performance  of  a  condition 
allows  proof  of  waiver.  West  Rockingham  Fire  Ins.  Co. 
V.  Sheets,  26  Grat.  854.     1875. 

§  17.  Averments  wliicli  show  that  the  parties  were 
mistaken  as  to  the  effect  of  the  language  used  in  policy, 
are  sufficient  to  authorize  reformation  of  the  contract, 
vvithout  a  specific  allegation  of  a  mistake  of  fact.  Maher 
V.  Hibernia  Ins.  Co.  07  N.  Y.  283.  1876.  Affi'g  6  Hun, 
353. 

§  18.  When  complaint  expressly  avers  an  insurable 
ihtetest  to  have  existed  at  time  of  effecting  the  insurance 
the  legal  presumption  is  that  such  interest  continued  until 
time  of  the  loss.  So  held  on  demurrer,  complaint  not  al- 
leging interest  at  time  of  fire.  Roussel  v.  St.  Nicholas 
Ins.  Co.  9  Jones  &  Sp.  280.     1876. 

g  19.  Declaration  must  contain  an  averment  that 
property  destroyed  was  in  the  place  described  in  the  pol- 
icy, otherwise  it  is  bad  on  demurrer.  Todd  v.  Germauia 
Fire  Ins.  Co.  1  Mo.  App.  472.     1870. 

§  20.  Issue  being  upon  agent's  knowledge  of  encum- 
brances, assured  testified  that  the  agent  did  know  of  the 
mortgages.  The  agent  denied  such  knowledge,  and  defend 
ant  proved  and  read  a  letter  written  by  the  assured  to  the 
home  office  after  the  loss,  in  which  he  stated  "  I  know 
nothing  about  whether  he  (the  agent)  knew  of  the  mort- 
gage or  not,"  and  the  assured  attempted  no  explanation. 
Jury  found  in  favor  of  plaintifl^.  Ileld,  that  verdict  was 
contrary  to  the  evidence,  and  judgment  entered  upon  the 
verdict  reversed.  Huntley  v.  Home  Ins.  Co.  7  Ins.  L.  J. 
134.     1876.     Iowa. 

§  21.  Evidence  of  waiver  is  properly  received  under 
a  general  allegation  of  performance  of  conditions.  Gans 
v.  St.  Paul  Fire  Ins.  Co.  43  Wis.  108.     1877. 

§  22.  It  is  necessary  to  allege  an  interest  in  the  prop- 
erty insured.  Quarrier  v.  PoaboJy  Ins.  Co.  10  W.  Va. 
507.    1877. 


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244 


PLEALING  AND  PRACTICE. 


§  23.  A  defense  of  willful  burning  must  be  specially 
averred  to  be  available.  Evidence  establishing  such  a  de- 
fense is  not  admissible  under  the  general  issue.  Resideuce 
Fire  Ins.  Co.  v.  Hannawold,  37  Mich.  103.     1877. 

§  24.  A  company  cannot  be  sued  in  covenant  upon 
an  indorsement  made  upon  the  policy.  Shertzer  v.  Mu- 
tual Fire  Ins.  Co.  46  Md.  506.     1877. 

§  25.  Semhle  that  when  the  truth  of  representations 
in  an  application  are  made  condition  precedent  to  a  right 
of  action  on  the  policy,  such  an  application  and  its  cor- 
rectness should  be  pleaded.  Ins.  Co.  v.  McGookey,  33 
Ohio,  555.     1878. 

§  26.  A  declaration  upon  a  contract  of  insurance  will 
not  sustain  a  recovery  upon  ground  of  negligence  of  com 
pany's  agent  in  forwarding  an  application  for  insurance. 
Walker  v.  Farmers'  Ins.  Co.  51  Iowa,  679.     1879. 

§  27.  The  defenses  of  other  insurance,  existence  of  a 
mortgage,  encumbrance,  and  a  change  of  the  occupancy  of 
the  premises,  having  a  tendency  to  increase  the  risk,  are 
all  available  to  defendant  and  may  be  proved  and  estab- 
lished under  the  genei-al  issue.  The  rule  is  that  under  the 
general  issue  any  matter  which  shows  that  the  plaintiff 
never  had  a  cause  of  action  may  be  given  in  evidence,  and 
also  most  matters  in  discharge  of  the  action  which  show 
that,  at  the  time  of  the  commencement  of  the  suit,  the 
plaintiff  had  no  subsisting  cause  of  action.  Western  As- 
surance Co.  V.  Mason,  5  Bradwell,  141.     1879. 

§  28.  Under  Illinois  practice  a  default  on  part  of 
company  admits  every  material  allegation  of  the  declara- 
tion, and  leav(!8  nothini;  but  the  assessment  of  daniacres  to 
be  determined.  Pha'nix  Ins.  Co.  v.  Perkey,  92  111.  164. 
1879. 

§  29.  A  waiver,  whether  relied  upon  to  prevent  a 
forfeiture  of  policy  on  ground  of  concealment  or  breach 
of  warranty,  must  be  specially  pleaded,  and  it  must  amount 
either  to  an  agreement  or  an  estoj)pel.    In  the  latter  case 


PLEADING  AND  PRACTICE. 


245 


the  particulars,  representations  or  conduct  that  have  been 
relied  or  acted  upon  should  be  stated  with  reasonable 
certainty.    Texas  Banking  Co.  v.  Hutchins,  53  Texas,  61. 

1880. 

§  30.  Waiver  must  be  pleaded,  and  must  amount  to 
an  agreement  or  estoppel.  Galveston  Ins.  Co.  v.  Heiden- 
heimer,  9  Ins.  L.  J.  592.     1880.    Texas. 

§  31.  It  is  not  necessary  for  assured  to  aver  and 
prove  application  made  a  warranty ;  he  must  show  affirm- 
atively performance  of  conditions  precedent.  It  is  for  the 
defendant  to  aver  and  prove  breach  of  warranties  and 
conditions  subsequent.  Redman  v.  ^tna  Ins.  Co.  49  Wis. 
431.    1880. 

§  32.  When  a  renewal  of  policy  originally  issued  in 
the  name  of  two  parties  is  made  out  in  the  name  of  one 
of  them  only  and  suit  is  brought  by  him  alone,  there  i^s 
no  variance.  Lockwood  v.  ISliddlesex  Mut.  Ins.  Co.  47 
Conn.  553.     1880. 

§  33.  When  terms  of  policy  are  set  out  in  the  declar- 
ation, there  must  be  a  specific  averment  of  performance  of 
all  conditions  precedent.  Perry  v.  Phoenix  Ins.  Co.  8  Fed. 
Rep.  643.     1881.     U.  S.  Cir.,  R  I. 

See  Adjustment,  §  9.  Alteration,  2.  Certificate,  16.  Evidence,  45,  59. 
Foreign  Company,  6,  33,  80,  43,  Mortgagor  at\d  Mortgagee,  18.  Mutual 
Company,  13,  36,  60,  69,  63,  133.  Payment  of  Loss,  3.  Proofs  of  Loss,  35, 
85.    Valued  Policy,  2.    Waiver,  57.     Warranty  and  Representation,  73. 


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PREMIUM. 

§  1.  Receipt  of  premium  by  company  with  knowl- 
edge f  f  facts  constituting  breach  of  condition  in  the  pol- 
icy  operates  as  a  waiver.  Mershon  v.  National  Ins.  Co.  U 
Iowa,  87.     1871. 

§  2.  An  acknowledgment  of  the  receipt  of  a  premium 
in  a  policy  of  insurance  operates  as  an  estoppel  prevent- 
ing  the  company  from  setting  up  as  a  defense  non-payment 
of  the  premium.  Basch  v.  Humboldt  Ins.  Co.  6  Vroom, 
N.  J.  L.  R.  429.     1872. 

§  3.  A  condition  making  payment  of  the  premium 
essential  to  validity  of  policy  may  be  waived  by  the  com- 
pany or  its  authorized  agent,  and  such  waiver  may  be 
shown  by  direct  proof  that  credit  was  given  or  can  be  in- 
ferred from  circumstances.  Bodine  v.  Exchange  Fire  Ins. 
Co.  .51  N.Y.I  17.     1872. 

§  4.  When  policy  is  delivered  to  a  broker  to  bo  handed 
over  to  the  assured  if  the  premium  note  is  paid,  and  the 
broker  keeps  the  policy  at  the  request  of  the  assured,  and 
while  in  his  possession  property  is  desti'oyed,  premiuui  not 
having  been  paid  and  condition  in  policy  requiring  its 
prepayment,  Jleld,  that  company  would  not  be  bound  by 
any  credit  or  arrangement  made  by  the  brokei*  with  the 
assured.     Marland  v.  Royal  Ins.  Co.  71  Pa.  .'{93.     1872. 

§  5.  If  a  policy  be  executed  and  delivered  containing 
an  acknowledgment  of  receipt  of  premium,  company  will 
not  be  permitted  to  allege  a  want  of  consideration  for 
their  promise  when  sued  thereon  after  u  loss.  Consol. 
Real  Est.  Co.  v.  Cashow,  41  Md.  59.     1874. 

§  G.  Company  was  accustomed  to  charging  premiums 
to  an  agent  authorized  to  receive  and  submit  applications 
and  to  receive  and  deliver  policies  for  such  as  were  ac- 
cepted. Credit  for  the  premiums  was  given  by  .such 
agent.     Ileld^   that   by   this   usage  premium   was  paid. 


■m 


PREMIUM. 


247 


Train  v.  Holland  Purchase  Ins.  Co.  62  N,  Y.  r/JS.     1875. 
Rev'g  1  Hun,  527. 

8  7,  Policy  provided  that  (1)  premium  was  due  and 
payable  on  delivery  of  policy ;  (2)  that  when  credit  was 
given  to  the  extent  of  four  months,  policy  should  be  in 
force  during  that  time ;  (3)  but  unless  premium  was  paid 
within  the  four  months,  company  should  not  be  liable  for 
a  loss  occurring  thereafter.  It  was  delivered  without  ex- 
acting payment,  and  no  time  of  credit  was  specified.  The 
premmm  upon  a  previous  policy  obtained  under  similar 
circumstances  had  been  paid  and  accepted  after  the  expi- 
ration of  the  four  months.  A  loss  occurred  after  expira- 
tion of  four  months,  and  premium  had  not  been  paid. 
Beld,  evidence  sufficient  to  sustain  a  finding  of  waiver  of 
condition  in  regard  to  payment  of  premium.  Bowman  v. 
Agricultural  Ins.  Co.  59  N.  Y.  521.     1875. 

§  8.  If  agents  of  company  acting  for  themselves  ad- 
vance the  money  for  the  premium  to  the  company  and 
afterwards  take  the  assured's  note  for  the  amount  thereof 
as  their  own  and  negotiate  the  same,  this  is  a  sufficient 
compliance  with  a  condition  of  the  policy  requiring  pre- 
mium to  be  actually  paid  before  company  should  become 
liable.     Home  Ins.  Co.  v.  Curtis,  32  Mich.  402.     1875. 

§  9.  The  delivery  to  an  insurance  broker  of  a  policy 
and  charging  him  with  the  premium  in  a  general  account 
in  usual  course  of  business  by  the  agent  of  the  company 
with  its  knowledge,  is  the  equivalent  of  payment.  Bang 
V.  Farmville  Ins.  Co.  1  Hughes,  290.     1870. 

§  10.  Whenever  it  can  be  inferred  from  all  the  eir- 
cumsstances  ami  previous  dealings  between  the  parties, 
that  credit  was  given  for  the  premium,  it  is  error  to  hold 
as  matter  of  law  tliat  there  was  no  waiver  of  prepayiueut 
of  the  i)ren)iun»  according  to  condition  of  the  policy,  and 
to  witiihold  that  question  from  the  jury.  Church  v.  La- 
faj^ette  Fire  Ins.  Co.  CO  N.  Y.  222.  1876.  s.  p.  8ociete 
Bienfaisance  v.  Morris,  24  La.  Ann.  347.  1872.  Baldwin 
V.  Chouteau  Ins.  Co.  50  Mo.  151.  1874.  Latoix  v.  Ger- 
raania  Ins.  Co.  27  La.  Ann.  113.     1875. 


ip"  iMit 


;;■  i:B'! 


248 


PREMIUM. 


I^i 


mi 


m 


m  I 


't;      i 


§  11.  Policy  was  delivered  by  defendant's  agent  with- 
out payment  of  the  premium,  and  no  time  was  fixed  when 
it  should  be  paid.  Payment  was  demanded  several  times 
and  on  last  occasion  plaintiff  said  he  would  pay  it  in  a 
few  days.  Policy  was  not  canceled,  nor  was  plaintiff 
notified  that  it  would  be  void  or  canceled  unless  payraent 
was  made.  Held,  evidence  of  waiver  of  condition  requir- 
ing prepayment.  Washoe  Manufacturing  Co.  v.  Hibernia 
Fire  Ins.  Co.  66  N.  Y.  613.     1876.     Affi'g  7  Hun,  74. 

§  12.  If  a  company  chooses  to  issue  its  policy  and  to 
look  to  its  agent  for  the  premium,  it  must  be  considered 
as  paid  so  far  as  the  liability  of  the  company  is  involved. 
Planters'  Ins.  Co.  v.  Ray,  52  Miss.  325.     1S7G. 

§  13.  When  a  clerk  leaves  office  of  a  eomp.iny  with  a 
receipt  which  he  is  on  certain  terms  empowered  to  give 
up  to  a  person  desiring  to  renew  an  insurance,  and  where 
the  company  has  money  of  such  person  under  its  control, 
and  where  the  premium  is  offered  to  the  clerk  and  by  him 
refused,  and  the  receipt  is  left  and  no  demand  is  made  for 
its  return,  and  the  person  holding  it  relies  upon  it  as  an 
insurance,  company  is  estopped  from  denying  its  liability, 
even  although  private  instructions  may  have  been  given 
to  the  clerk  which  he  did  not  disclose,  not  to  leave  the  re- 
ceipt unless  he  was  paid  in  cash.  Staunton  v.  Western 
Ins.  Co.  21  Grant  Ch.  578 ;  and  see  23  Id.  81.     1876. 

§  14.  Assured  is  only  entitled  to  a  return  of  the  pre- 
mium when  the  risk  never  attached.  Ilawke  v.  Niagara 
District  Ins.  Co.  23  Grant  Ch.  139.     1876. 

§  15.  It  was  the  custom  of  company  to  deliver  poli- 
cies to  broker  without  requiring  cash  payment  of  premium, 
charging  the  same  to  his  individual  account,  and  rendering 
to  him  monthly  bills,  deducting  an  agreed  commission  for 
obtaining  risks.     In  his  monthly  settlements  the  broker 

{)aid  the  premiums  charged  to  him,  whether  he  had  col- 
ected  them  or  not,  and  m  this  particular  case  he  offered 
to  pay  the  premium  at  his  first  settlement  after  the  issue 
of  the  policy,  and  after  the  fire.  Held,  evidence  justified 
finding  that  company  had  accepted  the  individual  credit 


ill 


ill 


PREMIUM. 


249 


74. 


with  a 


of  the  broker  as  a  payment  of  the  required  premium. 
White  V.  Connecticut  Ins.  Co.  120  Mass.  330.     1876. 

§  16.  Delivery  of  policy  to  the  assured  waives  condi- 
tion requiring  prepayment  of  premium.  Mason  v.  Citi- 
zens' Fire  Ins.  Co.  10  W.  Va.  .572.     1877. 

J}  17.  A  negotiable  promissory  note  of  broker  accepted 
by  the  company  on  account  of  the  premium,  is  prima  facie 
payment  of  it,  and  discharges  the  assured.  Union  Ins. 
Co.  V.  Grant,  68  Me.  229.     1878. 

§  18.  The  giving  of  credit  by  a  local  agent  to  a  broker 
may  operate  as  a  payment,  in  legal  effect,  of  the  premium, 
preventing  cancellation  by  the  company  without  paying  or 
tendering  the  return  premium.  Bennett  v.  Maryland  Fire 
Ins.  Co.  14  Blatch.  422.     1878. 

§  19.  Policy  having  once  attached,  company  can  rely 
upon  a  forfeiture  without  the  return  or  offer  to  return  any 
portion  of  the  premium.  The  usual  provision  in  a  policy 
giving  company  the  option  to  cancel  it  applies  only  where 
the  company  sees  fit  to  cancel  the  policy,  and  not  in  cases 
where  there  is  a  forfeiture  resulting  from  the  act  of  the 
assured.    Phcenix  Ins.  Co.  v.  Stevenson,  78  Ky.  150.    1879. 

§  20.  President  of  an  insurance  company  who  issues 
policies  with  knowledge  that  the  statute  authorizing  its 
organization  has  not  been  complied  with,  is  guilty  of  fraud, 
and  personally  liable  for  the  repayment  of  premiums  thus 
obtained.     Belding  v.  Floyd,  17  Hun,  208.     1879. 

§  21.  When  assured  tenders  the  money  to  local  agent 
of  the  company  for  the  premium  and  he  declines  to  take 
it,  saying  that  he  has  in  his  hands  money  belonging  to 
him  for  rent,  and  will  credit  him  by  that  amount,  it  is 
equivalent  to  payment.  Wooddy  v.  Old  Dominion  Ins. 
Co.  31  Grat.  362.     1879. 

§  22.  Evidence  that  company  had  marked  policy  re- 
newed, and  of  custom  thus  to  mark  policies  renewed  be- 
fore payment  of  premium,  and  that  such  practice  was  re- 
cognized by  the  general  agent,  and  that  such  renewals 


250 


PREMIUM. 


I    t 


i-,;i!i 


were  understood  to  be  subject  to  such  agent's  disapproval 
and  the  local  agent  being  charged  with  the  amount  of 
the  premium,  and  that  the  condition  in  regard  to  payment 
of  renewal  premiums  was  not  attended  to,  and  that  on 
previous  renewal  of  policy  issued  premium  was  received 
and  accepted  after  the  issue  of  the  policy,  Held^  to  be  evi. 
dence  of  waiver  of  condition  in  regard  to  prepayment  of 
the  premium  for  renewal.  Peppit  v.  N.  B.  <fe  M.  Ins.  Co. 
I  RusseltfeG.  219.     1879. 

§  23.  Policy  is  not  rendered  void  by  the  fact  that 
agent  of  company  has  consented  to  assured's  paying  the 
premium  with  credit  of  the  amount  upon  his  individual 
account.  Jones  v.  JEtna  Ins.  Co.  8  Ins.  L.  J.  415.  1879. 
U.  S.  Circuit,  Mass. 

§  24.  If  agent  pays  premium  to  company,  giving  credit 
for  the  whole  or  a  part  to  the  assured,  such  payment  is 
sufficient,  and  if  policy  remains  in  the  hands  of  the  agent 
it  may  be  inferred  that  he  holds  it  for  the  assured,  pay- 
ment of  the  premium  being  evidence  that  policy  has  been 
accei)ted.  Wheeler  v.  Watertowu  Fire  Ins.  Co.  10  Ins.  L. 
J.  354.     1880.     Mass. 

See  Agent,  §  1,  9,  17,  21,  22,  30,  56,  72,  78.  Alienation,  14.  Consumma- 
tion of  Contract,  5,  7.  Estoppel,  6.  Evidence,  83.  Explosion,  6.  Foreign 
Company,  1,  10.  Increase  of  Risk,  23.  Mortgagor  and  Mortgagee,  40.  Mu- 
tual Company,  25,  27,  99, 117,  139,  152.  Renewal.  1,  4,  Storing  and  Keep- 
ing, 3.  Taxation,  2.  Usage  and  Custom,  C,  7.  Waiver,  10,  12.  Warranty 
and  Representation,  38,  68. 


Vi!    ■ 


PROOFS   OF    LOSS. 


§  1.  Silence  upon  receipt  of  proofs  is  no  evidence  of 
waiver;  but  if  objections  are  made  on  other  grounds  with- 
out objecting  to  the  sufficiency  of  proofs,  it  may  have  that 
effect.  McManus  v.  Jiitna  Ins.  Co.  6  Allen,  N.  B.  314. 
1865. 

§  2.  Appointment  of  an  agent  and  investigation  by 
him  of  the  circumstances  of  the  loss  does  not  amount  to  a 
waiver  of  notice  of  loss  and  proofs.  Company  may  insist 
upon  an  investigation  for  the  very  purpose  of  ascertaining 
whether  it  is  a  case  in  which  they  ought  to  waive  condi- 
tions of  its  policy.  Sharsivood,  J.  Bush  v.  Ins.  Co.  6 
Phil.  Hep.  252.     1867. 

§  3.  An  objection  based  on  a  strict  literal  construc- 
tion of  the  language  of  the  policy,  that  no  one  but  the 
assured  can  give  notice,  and  that  the  proofs  must  be  veri- 
fied by  his  oath,  and  cannot  under  any  circumstances  be 
verified  by  the  oath  of  another,  is  too  refined  and  unrea- 
sonable to  merit  consideration.  When  the  assured  is 
permanently  absent  and  totally  ignorant  of  the  loss  or 
destruction  of  the  property  and  value,  the  circumstances 
attending  it,  as  also  of  the  value  and  quantity  of  the 
property  destroyed,  his  wife  may  execute  and  furnish  the 
proofs  and  do  other  necessary  acts  required  of  the  as- 
sured. Her  authority  may  be  established  by  her  own 
testimony,  to  the  effect  that  before  her  husband  left  he 
told  her  "  to  take  care  of  the  place  and  property  until  he 
returned ;  to  take  care  of  it  the  same  as  himself  until  he 
returned."  O'Connor  v.  Hartford  Fire  Ins.  Co.  31  Wis. 
160.     1872. 

§  4.  In  case  where  the  fire  has  not  only  consumed 
the  goods  insured,  but  all  books  and  vouchers  from  which 
an  account  could  be  made,  the  insured  is  not  required  to 
do  what  would  be  vain  and  impossible,  but  only  to  such 
performance  of  the  conditions  in  regard  to  proofs  of  the 


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252 


PROOFS  OF   LOSS. 


amount  and  extent  of  his  loss  as  the  nature  of  the  case 
will  admit.  Jones  v.  Mechanics'  Fire  Ins.  Co.  7  Vroora, 
N.  J.  L.  R  29.     1872. 

§  5.  Proofs  were  served  April  3d,  1871.  Objections 
were  made  and  further  particulars  were  required  May 
24th,   1871.      Additional  proofs  were  served  June  Cth, 

1871.  July  20th,  1871,  further  proofs  were  required. 
All  the  books  and  proofs  in  the  assured's  possession  had 
\u'  '\  submitted  to  the  inspection  of  the  company's  ad- 
ju  t"^ig  agent  before  suit  was  brought.  Heldy  that  these 
fads  vvpve  proper  to  be  submitted  to  the  jury  as  evidence 
of  er  of  complete  preliminary  proofs  on  the  part  of 
tht  :ured  at  the  first  service.  Jones  v.  Mechanics'  Fire 
Ins.  Oo.  7  Vroom,  N.  J.  L.  R  29.     1872. 

§  6.  Where  an  adjuster,  after  having  examined  into 
the  facts  relative  to  the  fire  and  the  amount  of  the  prop- 
erty, states  to  the  assured  that  he  could  not  recommend 
company  to  pay  the  loss,  as  it  appeared  from  their  state- 
ments that  they  had  sold  more  goods  than  they  had  pur- 
chased, in  substance  claiming  that  the  assured  had  no 
claim  under  the  policy,  it  is  in  legal  efiect  a  denial  of  all 
liability  and  operates  as  a  waiver  of  the  right  to  demand 
proofs  of  loss.  McBride  v.  Republic  Fire  Ins.  Co.  30  Wis. 
562.     1872. 

§  7.  Company's  objections  to  proofs  must  be  prompt- 
ly  made.      O'Connor  v.  Hartford  Ins.  Co.  31  Wis.  100. 

1872.  Planters'  Mut.  Ins.  Co.  v.  Deford,  38  Md.  382,  404. 

1873.  Patterson  v.  Triumph  Ins.  Co.  64  Me.  500.  1874. 
Hibernia  Ins.  Co.  v.  O'Connor,  29  Mich.  241.  1874. 
Swan  V.  Liv.,  Lond.and  G.  Ins.  Co.  52  Miss.  704.  1876. 
Young  V.  Hartford  Ins.  Co.  45  Iowa,  378.  1877.  Mer- 
cantile Ins.  Co.  V.  Holthouse,  9  Ins.  L.  J.  535.  1880. 
Mich.  And  if  not  specifically  made  and  pointed  out,  tliey 
are  waived  ;  and  same  result  follows  if  objection  is  made 
to  the  loss  upon  a  certain  ground,  in  reference  to  all  other 
objections  which  could  have  at  the  time  been  made.  Au- 
rora Fire  Ins.  Co.  v.  Kranich,  36  Mich.  289.  Ins.  Co.  N. 
A.  V.  Hope,  58  III.  75.  1871.  Winnesheik  Ins.  Co.  v. 
Schuller,  60  111.  405.     1871.     Humphrey  v.  Hartford  Ins. 


PROOFS  OF  LOSS. 


253 


2ase 


'ire 


Co.  15  Blatch.  504.  Basch  v.  Humboldt  Ins.  Co.  6  Vroom, 
N.  J.  L.  K.  429.  1872.  State  Ins.  Co.  v.  Maackens,  9 
Vroom,  N.  J.  L.  R.  66'r.  1876.  Mason  v.  Citizens'  Fire 
Ins.  Co.  10  W.  Va.  572.  1877.  Enterprise  Ins.  Co.  v. 
Parisot,  35  Ohio,  35.  1878.  Williams  v.  Niagara  Ins. 
Co.  50  Iowa,  561.  1879.  German  Ins.  Co.  v.  Ward,  8 
Ins.  L.  J.  607.  1879.  111.  Phoenix  Ins.  Co.  v.  Tucker, 
92  111.  64.  1879.  Planters'  Mut.  Ins.  Co.  v.  Engle,  52 
Md.  468.  1879.  Badger  v.  Glen's  Falls  Ins.  Co.  49  Wis. 
389.  1880.  Titus  v.  Glen's  Falls  Ins.  Co.  81  N.  Y.  410. 
1880.     Graham  v.  Firemen's  Ins.  Co.  8  Daly,  420.     1880. 

§  8.  Claiming  policy  to  be  void  and  denial  of  all  lia- 
bility operates  as  a  waiver  of  proofs.  Batchelor  v.  Peo- 
ple's Ins.  Co.  40  Conn.  56.  1873.  Lycoming  Ins.  Co.  v. 
Dunmore,  75  111.  14.  1874.  Parker  v.  Amazon  Ins.  Co. 
34  Wis.  364.'  1874.  Planters'  Ins.  Co.  v.  Comfort,  50 
Miss.  662.  1874.  Field  v.  Ins.  Co.  N.  A.  6  Biss.  121. 
1874.  West  Rockingham  Fire  Ins.  Co.  v.  Sheets,  26  Grat. 
854.  1875.  Williamsburg  City  Ins.  Co.  v.  Cary,  83  111. 
453.  1870.  Akin  v.  Liv.,  L.  and  G.  Ins.  Co.  6  Ins.  L.  J. 
341.  1877.  U.  S.  Circuit,  Ark.  Germania  Ins.  Co.  v. 
Castrel,  7  Ins.  L.  J.  2.')3.  1877.  111.  Blennett  v.  Mary- 
land Ins.  Co.  14  Blatch.  422.  1878.  Crawford  Co.  Mut. 
Ins.  Co.  V.  Cochran,  88  Pa.  230.  1878.  People's  Ins.  Co. 
V.  Straehle,  2  Cin.  Siipr.  186.  1878.  ^tna  Ins.  Co.  v. 
Sparks,  62  Ga.  187.  1879.  Portsmouth  Ins.  Co.  v.  Rey- 
nolds, 32  Grat.  613.  1880.  Ilarriman  v.  Queen  Ins.  Co. 
49  Wis.  71.  1880.  Rumsey  v.  Ph(enix  Ins.  Co.  17 
Blatch.  527.  1880.  Farmers'  Ins.  Co.  v.  Meckes,  10  Ins. 
L.  J.  707.  1880.  Pa.  Farmers'  Ins.  Co.  v.  Moyer,  10 
Ins.  L.  J.  514.  1881.  Pa.  And  loss  becomes  immedi- 
ately due  and  payable  notwithstanding  the  limitation  of 
sixty  days  contained  in  tlie  policy.  Cobb  v.  Ins.  Co.  N. 
A.  llKans.  93.     1873. 

§  9.  Whore  condition  requires  immediate  notice  or 
proofs,  it  means  "  as  soon  as  possible  under  the  circum- 
stances" (Cashau  v.  N.  W.  National  Ins.  Co.  5  Biss.  476. 
1873),  "due  diligence"  (Continental  Ins.  Co.  v.  Lippold, 
3  Neb.  391.  1874),  "within  reasonable  time"  (Rokes 
v.  Amazon  Ins.  Co.  51  Md.  512.     1879). 


Ill 


i 


254 


PROOFS  OF  LOSS. 


§  10.  A  mere  letter  of  advice  from  a  soliciting  agent 
of  company  to  the  assured,  on  receipt  of  notice  of  loss,  to 
the  effect  that  he  would  notify  the  company  ivA  that 
some  one  would  come  to  adjust  the  loss,  cannot  be  con- 
strued as  a  waieer  of  proofs.  Forest  City  Ins.  Co.  v. 
School  Directors,  4  Brad  well,  145. 

§  11.  Objections  to  proofs  must  be  made  known  to 
assured  in  such  time  that  they  can  be  remedied.  Ex 
Parte  Norwood,  3  Biss.  504.     1878. 

§  12.  Service  of  copies  of  notice  and  proofs  on  re- 
insuring company,  and  retention  without  objection,  suffi- 
cient compliance  with  conditions  in  regard  to  them. 
Cashau  v.  Northwestern  Nat.  Ins.  Co.  5  Biss.  476.     1873. 

§  13.  A  statement  in  proofs  of  loss  that  there  was 
other  insurance,  is  not  an  admission  that  the  assured  had 
other  insurance.  Insurance  had  by  the  assured  and  other 
insurance  upon  the  property  are  not  the  same.  When, 
therefore,  the  company  is  obliged  to  supplement  the  state- 
ment in  proofs  by  other  evidence,  the  assured  has  a  right 
to  contradict  it,  and  a  finding  in  his  favor  l)y  the  trial 
court  or  jury  is  conclusive.  McMaster  v.  Ins.  Co.  of  N.  A. 
55  N.  Y.  222.     1873. 

§  14.  Assured  is  not  estopped  by  a  statement  in 
proofs  of  loss  from  proving  the  contrary  or  different  fact. 
Parmelee  v.  Hoffman  Fire  Ins.  Co.  54  N.  Y.  193.  1873. 
s.  p.  McMaster  v.  Ins.  Co.  N.  A.  55  N.  Y.  222.  1873. 
Cummins  v.  Agricultural  Ins.  Co.  67  N.  Y.  260.     1876. 

§  15.  Policy  insured  "  the  People."  Proofs  were 
made  and  furnished  by  the  vice-president  of  an  asylum, 
the  property  insured  and  burnt.  Held,  that  as  the  State 
can  only  act  through  agents,  and  the  legislature  having 
recognized  the  board  of  trustees  and  placed  them  in 
charge  of  the  asylum  as  such  agents,  the  authority  of  the 
vice-president  could  not  be  disputed.  People  v.  Liv., 
Lond.  and  G.  Ins.  Co.  2  T.  &  C.  (N.  Y.  Sup.)  268. 
1873. 


PROOFS  OP   LOSS. 


259 


8  16.  If  company  denies  all  liability  under  an  interim 
receipt  for  insurance,  there  is  no  necessity  of  assured  com- 
plying with  conditions  precedent,  to  loss  being  due  and 
payable  as  contained  in  the  policies  that  are  ordinarily 
used  and  issued.  Goodwin  v.  Lancashire  Fire  Ins.  Co.  18 
L.  C.  Jurist,  1.     1873.     Reversing  10  L.  C.  Jurist,  298. 

§  17.  Policy  provided  that  proofs  should  be  furnished 
within  15  days,  and  that  "  until  such  proofs  were  furnished 
no  right  of  action  should  accrue."  Held,  that  the  last 
clause  qualified  the  former  and  must  be  considered  in  con- 
nection, and  that  therefore  the  furnishing  of  f»roofs  by  the 
assured,  although  after  the  expiration  of  the  15  days,  was 
in  time.  Lafarge  v.  Liv.,  Lond.  <fe  Globe  Ins.  Co.  17  L.  C. 
Jurist,  237.     1873. 

§  18.  Assured  produced  a  book  into  which  a  number 
of  invoices  were  pasted  and  a  small  diary  in  which  num- 
erous memoranda  were  made.  From  these  he  made  an 
extract  saying  his  total  stock  was  so  much  and  his  sales  so 
much,  and  as  he  had  stock  on  hand  previous  to  the  date 
of  these  invoices  amounting  to  about  $2,400  and  only  $600 
being  saved  in  a  damaged  state,  therefore  his  loss  amounted 
to  so  much.  Held,  that  plaintiff  had  not  given  a  partic- 
ular and  total  statement  of  his  loss  as  required  by  condi- 
tion of  the  policy  in  regard  to  proofs.  Stickney  v.  Niag- 
ara District  Mut.  Ins.  Co.  23  Up.  Can.  C.  P.  372.     1873. 

§  19.  If  there  be  any  evidence  from  which  a  waiver 
of  proof  may  be  inferred,  it  should  be  left  to  the  jury. 
Farmers'  Ins.  Co.  v.  Taylor,  73  Pa.  342.     1873. 

§  20.  Policy  required  the  assured  in  case  of  loss  to 
furnish  a  particular  account  of  it,  which  should  include  a 
statement  of  the  true  nature  of  his  title  at  the  time  of  the 
fire.  In  his  proofs  of  loss  assured  stated  that  he  was  ''  bona 
fide  owner  of  the  property,  holding  same  by  possession 
for  or  during  the  last  35  years  by  myself  and  my  father." 
The  property  in  question  was  a  barn.  It  appeared  that 
at  the  time  of  making  such  statement  the  assured  knew 
that  a  recovery  in  (gectmeijt  had  been  actually  had  against 
him  some  weeks  before  the  fire  by  one  having  a  better 


■\  M 


256 


PROOFS  OP  LOSS. 


legal  title.  Held^  that  the  barn  was  to  be  considered  as  a 
part  of  the  freehold ;  that  such  statement  was  not  a  com- 
pliance with  the  condition,  and  the  plaintiff  could  not  re- 
cover ;  and,  Held^  that  he  could  not  subsequently  maintain 
an  action  upon  the  theory  that  the  barn  was  a  chattel. 
Sherboneau  v.  Beaver  Mutual  Fire  Ins.  Co.  30  Up.  Can. 
Q.  B.  472.     1870. 

§  21.  Policy  covered  $1,400  on  dry  goods  and  cloth- 
ing ;  $400  on  groceries  and  crockery ;  $200  on  boots  and 
shoes.  Assured  in  his  proofs  of  loss  gave  total  of  stock  on 
hand  at  a  certain  date,  of  merchandise  purchased  since  that 
date,  merchandise  sales  during  the  same  period,  goods 
saved  as  per  inventory,  which  being  objected  to,  Held^ 
that  assured  was  bound  to  give  a  particular  account  of  his 
loss  under  each  item  insured,  and  the  furnishing  of  a  gen- 
eral account  covering  all  under  the  head  or  name  of  stock 
or  merchandise  was  not  a  compliance  with  the  condition. 
Lindsay  v.  Lancashire  Fire  Ins.  Co.  34  Up.  Can.  Q.  B.  440. 
1874. 

§  22.  When  assured  is  informed  by  local  agent  that 
"  it  is  useless  and  loss  of  time  to  r  ke  up  proofs,  that  com- 
pany is  bankrupt,"  it  is  a  waiver.  Pennell  v.  Lamar  Ins. 
Co.  73  111.  303.     1874. 

§  23.     The  question  of  due  diligence  in  furnishing  of 

fToofs  is  proper  to  be  submitted  to  the  jury.     Continental 
ns.  Co.  V.  Lippolu,  4  Ins.  L.  J.  430.     1874.     Neb. 

§  24.  When  mortgagor  and  assured  declined  to  fui*- 
nish  proofs  of  loss,  and  plaintiff,  to  whom  loss  was  origi- 
nally made  payable  but  who  had  acquired  the  title  under 
foreclosure  with  knowledge  and  consent  of  the  company, 
under  instructions  of  its  agent  made  and  furnished  them, 
and  company  about  ten  days  after  their  receipt  notified 
plaintiff  that  "  proofs  were  not  made  as  required  by  i)ol- 
icy,  and  that  they  would  not  be  recognized  as  proofs," 
and  none  other  were  made.  Held^  that  under  the  circuni' 
stances  plaintiff  was  not  bound  to  furnish  additional 
proofs  upon  a  general  notice  without  specification  of  the 
defect  claimed.  Pratt  v,  N.  Y.  Central  Ins.  Co.  55  N.  Y. 
605.     1874. 


PROOFS  OF  LOSS. 


257 


§  25.  Semhle,  that  the  assured  is  1  und  by  statement 
of  the  amount  of  his  loss  as  claimed  in  Lue  proofs,  and  can 
recover  no  more,  although  evidence  on  trial  may  tend  to 
show  the  loss  to  exceed  such  amount.  De  Grove  v.  Met- 
ropolitan Ins.  Co.  61  N.  Y.  594.     1875.    See  §  85. 

§  26.  Full  compliance  with  condition  precedent  to 
loss  being  due  and  payable  is  indispensable  to  right  of  ac- 
tion, unless  compliance  is  impossible  or  is  waived  by  the 
company.  O'Brien  v.  Commercial  Fire  Ins.  Co.  63  N.  Y. 
10b.     1875. 

§  27.  Where  facts  are  undisputed  due  diligence  in 
furnishing  notice  and  proofs  is  a  question  of  law.  Knick- 
erbocker Ins.  Co.  v.  Gould,  80  111.  388.     1875. 

§  28.  Objection  as  to  time  in  furnishing  proofs  is  not 
waived  by  retention  and  silence.  Knickerbocker  Ins.  Co. 
v.  Gould,  80  111.  388.  1875.  Bell  v.  Lycoming  Ins.  Co. 
19  Hun,  238.     1879. 

§  29.  When  policy  has  been  assigned  in  trust,  the 
assured  must  execute  and  furnish  the  proof.  Whyte  v. 
Western  Ins.  Co.  22  L.  C.  Jurist,  215.     1875. 

§  30.  An  agent  waives  compliance  with  condition  in 
regard  to  proofs  by  telling  assured  to  obtain  the  informa- 
tion required  after  he  should  get  home  as  soon  as  possible, 
and  that  that  would  do.  Cann  v.  Imperial  Fire  Ins.  Co.  1 
Kussel  <fe  C.  N.  S.  240.     1875. 

§  31.  Proofs  of  loss  are  admissible  in  evidence  only 
for  purpose  of  showing  compliance  with  the  condition. 
Knickerbocker  Ins.  Co.V.  Gould,  80  111.  388.  1875.  Ed- 
gerly  v.  Farmers'  Ins.  Co.  48  Iowa,  644.  1878.  But  it 
seems  their  effect  should  be  so  limited  by  objection  and 
instruction.  Ins.  Co.  of  N.  A.  v.  Zuenger,  63  111.  464. 
1872. 

§  32.  When  policy  requires  that  proofs  shall  be  made 
within  a  reasonable  time  the  question  as  to  what  is  a  rea- 
sonable time  is  a  mixed  question  of  law  and  fact  to  be 

Vol.  II.— 17 


f 


1 


ijf 

if' 


M 


'  1 


258 


PROOFS  OF  LOSS. 


submitted  to  the  jury  under  proper  instructions.     Swan  v 
Liv.,  Lond.  &  Globe  Ins.  Co.  52  Miss.  704.     1876. 

r  §  33.  When  policy  is  made  payable  to  a  third  party, 
proofs  must  be  made  by  the  assured.  Condition  requiring 
proof  to  be  furnished  as  soon  as  possible,  means  within  a 
reasonable  time.  When  furnished  four  months  after  the 
fire  the  lapse  of  such  time  cannot  be  deemed  reasonable. 
State  Ins.  Co.  v.  Maackens,  9  Vroom,  N.  J.  L.  R.  564. 
1876. 

§  34.  If  assured  by  act  or  declaration  of  company's 
agent  is  induced  not  to  furnish  proofs  within  the  prescribed 
time,  it  is  a  waiver.  Georgia  Home  Ins.  Co.  v.  Kinnier, 
28  Grat.  88.     1876. 

§  35.  Pleading  other  defenses  does  not  waive  dc^fense 
founded  upon  non-compliance  with  condition  in  regard  to 
proofs  of  loss.  Farmers'  Ins.  Co.  v.  Frick,  29  Ohio,  460. 
1876. 

§  36.  Policy  was  in  the  joint  names  of  two  parties 
who  were  partners  in  business.  After  the  fire  and  two 
months  after  the  making  and  delivery  of  the  statement  of 
loss  one  of  the  partners  assigned  all  his  interest,  <fec.,  in 
the  policy  to  the  plaintifil  Jieldf  that  the  action  was  prop- 
erly brought  in  the  name  of  the  plaintiff  alone,  and  there 
was  no  objection  in  the  fact  that  the  proofs  were  sworn  to 
by  one  partner  (the  plaintiff),  being  otherwise  sufficient. 
Hutchinson  v.  Niagara  District  Ins.  Co.  39  Up.  Can.  Q.  B. 
483.     186. 

§  37.  Proofs  of  loss  cannot  be  fuinished  by  a  party 
to  whom  loss  is  made  payable.  Stanton  v.  Home  Fire 
Ins.  Co.  21  L.  C.  Jurist,  211.     1876. 

§  38.  Policy  required  assured  to  state  in  his  proofs  of 
loss  "  the  whole  value  and  ownership  of  the  property  in- 
sured." Held,  assured  is  not  required  to  make  any  state- 
ment in  regard  to  encumbrances.  Taylor  v.  JEtna  Ins.  Co. 
120  Mass.  254.     1876. 

§  39.  Secretary  wrote  letter  to  assured  after  a  loss  in 
which  after  acknowledging  receipt  of  notice  of  the  fire 


PROOFS  OP  LOSS. 


259 


and  "  of  request  for  proof  blanks,"  he  added,  "  We  have 
no  proof  blanks  at  hand.     It  will  probably  be  two  weeks 
before  our  adjuster  can  reacii  this  case."    Held,  this  was   , 
no  waiver  of  timely  service  of  proofs  of  loss.    Birming-  / 
ham  V.  Farmers'  Joint  Stock  Ins.  Co.  67  Barb.  595.     1876.  \ 

§  40.  Policy  contained  conditions  as  follows :  "  No 
act  or  omission  of  the  company,  or  any  of  its  officers  or 
agents,  shall  be  deemed  construed  or  held  to  be  a  waiver 
of  a  full  and  strict  compliance  with  the  foregoing  pro- 
vision (in  regard  to  proofs),  nor  of  any  extension  of  time 
for  compliance,  except  it  be  a  waiver  or  extension  in  ex- 
press terms  and  in  writing,  signed  by  the  president  or 
secretary."  Also  "  said  policy  is  made  and  accepted  upon 
the  foregoing  terms,  conditions,  and  restrictions,  and  that 
nothing  less  than  a  distinct  specified  agreement  in  writing, 
signed  by  an  officer  of  the  company,  shall  be  construed  as 
a  waiver  thereof."  HeM^  that  these  conditions  were  opera- 
tive, and  that  a  letter  from  defendant's  secretary,  after  a 
fire,  to  the  assured,  acknowledging  receipt  of  notice  of 
fire  and  request  for  proof  blanks  and  stating  that  he  had 
no  blanks,  and  that  adjuster  could  not  attend  to  case  for 
two  weeks,  could  not  be  construed  as  an  "  agreement "  or 
waiver.  Birmingham  v.  Farmers'  Joint  Stock  Ins.  Co.  67 
Barb.  595.     1876. 

§  41.  A  reformation  of  policy  does  not  require  assured 
to  furnish  new  or  further  proofs  of  loss.  Maher  v.  Hiber- 
nia  Ins.  Co.  67  N.  Y.  283.     1876. 

§  42.  Where  condition  requires  furnishing  of  proofs 
within  certain  specified  time,  they  must  be  furnished  in 
such  time  unless  waived.  Blossom  v.  Lycoming  Fire  Ins. 
Co.  64N.  Y.  162.     1876.  j 

§  43.  If,  after  time  for  furnishing  proofs  has  passed, 
agent  of  company  acts  and  speaks  as  if  they  had  been 
presented  in  season,  or  if,  while  resisting  claim  upon  his 
company,  he  places  his  objections  entirely  upon  other 
grounds,  and  never  alludes  to  the  failure  to  furnish  the 
proofs  and  expressly  waives  another  condition,  jury  may 
infer  a  waiver.     Home  Ins.  Co.  3  Otto,  527.     1576. 


■'mm. 


260 


PROOFS  OF   LOSS. 


§  44.  When  company  notifies  the  assured  after  the 
loss  that  the  property  will  be  replaced  and  dii-ects  the 
agent  of  the  assured  not  to  complete  the  proofs,  in  conse- 
quence of  which  the  latter  are  not  made  out  and  received 
by  the  company  in  the  30  days  prescribed  by  a  condition 
of  the  policy,  Held,  sufficient  evidence  of  waiver  for  sub- 
mission to  the  jury.  State  Ins.  Co.  v.  Todd,  83  Pa.  272. 
1877. 

§  45.  Agent  of  the  company  was  present  at  the  fire, 
and  next  day  assisted  the  assured  in  opening  his  safe  and 
securing  its  contents.  Notice  of  the  event  was  immedi- 
ately communicated  to  the  company,  who  in  seven  to  nine 
days  sent  out  an  adjuster  who  received  proofs,  and  did  mt 
require  any  further  or  additional  proofs.  Held,  sufficicni 
to  satisfy  obligation  upon  insured  to  furnisli  proofs  within 
reasonable  time.  Kennedy  v.  Ins.  Co.  6  Ins.  L.  J.  359. 
1877.    Tenn. 

§  46.  Retention  of  proofs  for  a  period  of  thirty-eight 
days,  with  knowledge  of  defect  without  making  the  objec- 
tion, will  sustain  a  finding  that  proofs  were  accepted  as 
sufficient  and  of  a  waiver.  Keeney  v.  Home  Ins.  Co. 
71  N.  Y.  396.    1877. 

§  47.  Fire  occurred  November  23,  1865.  Proofs 
-were  not  served  until  February  16,  1866,  although  com- 
pleted and  verified  January  8, 1866.  No  reason  appeared 
for  the  delay.  Payment  was  refused  on  ground  of  fraud. 
Court  charged  the  jury  that  if  defendant  objected  to  pay- 
ment on  ground  of  fraud,  it  was  not  essential  to  serve 
pioofs,  and  that  in  such  case  there  was  a  waiver.  Held, 
error;  that  if  proofs  were  not  served  in  time,  and  the 
company  had  done  nothing  to  induce  the  omission,  the 
fact  that  the  company  thereafter  refused  to  pay,  without 
assigning  any  reason,  or  only  assigning  one  of  many,  did 
not  amount  to  a  waiver,  and  did  not  estop  it  from  insist- 
ing upon  any  other  defenses.  It  was  not  bound  to  specify 
all  of  its  defenses  on  peril  of  losing  those  not  specified. 
Brink  v.  Hanover  Fire  Ins.  Co.  70  N.  Y.  593.     1877. 

§  48.  Court  charged  the  jury  that  "  if  they  believed 
company  promised  to  jjay  without  suit  in  event  of  a  son 


PROOFS  OF  LOSS. 


261 


of  assured  being  released  from  arrest  on  a  eotnplaint  of 
arson,  it  was  for  them  to  consider  whether  such  promise, 
together  with  the  fact  of  an  appraisement  voluntarily 
made  by  the  defendant,  had  the  effect  on  plaintiffs  mind 
of  preventing  his  taking  further  steps  in  furnishing  proofs, 
or  of  preventing  his  bringing  an  action,  and  that  if  they 
found  affirmatively,  there  was  a  waiver."  Held^  no  error. 
Solomon  v.  Metropolitan  Ins.  Co.  10  Jones  «fe  Sp.  22. 
1877. 

§  49.  By  accepting  an  answer  which  gives  an  aggre- 
gate valuation  of  all  the  property  insured  in  reply  to  a 
question  as  to  value,  company  waives  a  separate  valuation 
of  the  different  items  in  the  policy.  Residence  Fire  Ins. 
Co.  V.  Hannawold,  37  Mich.  103.     1877. 

§  50.  The  provision  requiring  that  the  interest  of  '.he 
assured  shall  be  set  forth  in  proofs  of  loss,  v/ith  namei  of 
the  true  owners,  is  directory  merely,  and  if  not  compiled 
with  to  satisfaction  of  company,  further  information 
should  be  called  for.  Foule  v.  Springfield  Ins.  Co.  122 
Mass.  191.     1877. 

§  51.  Under  a  condition  requiring  assured  to  furnish 
a  particular  account  of  the  loss,  and  if  required  to  pro- 
duce his  books  of  account  and  other  papers,  vouchers  and 
original  or  duplicate  invoices,  assured  is  bound  to  give  all 
information  and  particulars  reasonably  required,  <fec.,  in 
his  power  to  give.  Goldsmith  v.  Gore  District  Fire  Ins. 
Co.  27  Up.  Can.  C.  P.  435.     1877. 

§  52.  Honest  statement  of  facts  in  proofs  cannot  en- 
large their  legal  effect  and  make  them  a  defense,  if  they 
would  not  otherwise  be  one.  City  Five  Cent  Sav.  Bank 
V.  Penn.  Ins.  Co.  122  Mass.  165.     1877. 

§  53.  When  assured  is  notified  by  company  that  it 
will  rebuild  and  that  he  may  defer  the  making  of  proofs, 
there  is  a  waiver  of  condition  requiring  proofs  in  thirty 
days.  State  Ins.  Co.  v.  Todd,  0  Ins.  L.  J.  893.  1877. 
Pa. 

§  54.  A  special  and  adjusting  agent  occupying  part 
of  home  office  of    company,  upon   receiving   papers   or 


\r 


I!  ■ 


2G2 


PROOFS  OF  LOSS. 


l)roofs  of  loss,  waives  further  proofs  by  saying  in  response 
to  an  inquiry  that  nothing  further  is  required.  Edgerly 
V.  Farmers'  Ins.  Co.  48  Iowa,  644.     1878. 

§  55.  Although  policy  provides  that  proofs  shall  be 
furnished  at  the  home  office,  delivery  to  a  local  agent  and 
retention  by  him  without  objection  operates  as  a  waiver. 
German  Ins.  Co.  v.  Ward,  90  111.  550.     1878. 

§  56.  Substantial  compliance  with  conditions  in  re- 
gard to  notice  of  loss,  proofs  and  adjustment,  is  all  that  is 
required.     Willis   v.   Germania   Ins.  Co.  71)  N.  C.  285. 

1878. 

§  57.  Assured  is  not  estopped  by  a  sworn  statement 
in  his  proofs  of  loss  as  to  cause  or  origin  of  the  fire,  from 
showing  contrary  on  the  trial.  Smiley  v.  Citizens'  Fire 
Ins.  Co.  14  W.  Va.  33.     1878. 

§  58.  When  policy  fixes  no  definite  time  for  furnish- 
ing proofs  of  loss  assured  may  do  so  in  a  reasonable  time, 
and  if  it  is  done  at  any  time  and  the  proofs  are  not  ob- 

i'ected  to  on  account  of  being  too  late,  but  are  received  and 
:ept  without  oVyection,  the  company  is  estopped  from  set- 
ting up  as  a  defense  that  the  account  was  rendered  too 
late.  Palmer  v.  St.  Paul  Fire  Ins.  Co.  44  Wis.  201. 
1878. 

§  59.  When  company  objects  to  proofs  and  promises 
that  when  the  corrections  shall  be  made  they  will  be  re- 
ceived, knowing  that  it  would  be  impossible  for  the  as- 
sured to  make  them  and  return  the  proofs  in  the  time 
limited  by  the  policy,  company  is  estopped  from  insisting 
upon  the  failure  to  furnish  proofs  in  tlie  time  limited  as  a 
defense.  Hicks  v.  Empire  Ins.  Co.  6  Mo.  App.  254. 
1878. 

§  60.  When  policy  recites  that  payment  is  to  be  made 
60  days  after  notice  proof  and  adjustment  of  the  loss  "  in 
conformity  with  the  conditions  annexed  to  this  policy," 
such  conditions  referred  to  become  a  part  of  the  contract. 
Kensington  National  Bank  v.  Yerkes,  86  Pa.  227.     1878. 


PROOFS  OF  LOSS. 


263 


iponse 
iger]y 


111  re- 

tliat  is 

285. 


254. 


^61.  Silence  on  part  of  company  upon  receipt  of 
proofs  furnished  after  the  expired  time,  does  not  operate 
as  a  waiver,  nor  does  mere  statement  by  the  company  at 
such  time  that  it  does  not  consider  itself  liable  have  that 
effect.  Masse  v.  Hochelaga  Mut.  Ins.  Co.  22  L.  C.  Jurist, 
124.     1878. 

§  62.  The  whole  dispute  and  controversy  was  in  re- 
gard to  amount  of  the  claim.  In  ri  ply  to  a  notification 
by  attorney  of  suit,  company  wrote  "  *  *  *  the  com- 
pany will  contest  the  claim  (in  its  present  exaggerated 
form)  under  the  terms  and  conditions  of  the  policy,  though 
we  should  have  preferred  an  amicable  compromise.  *  *  * 
If  you  prefer  litigation  with  this  company,  we  shall  con- 
test the  claim  as  above."  Held,  error  to  charge  jury  that 
such  letter  constituted  a  waiver  of  proofs.  Farmers'  Fire 
Ins.  Co.  v.  Mispelhorn,  50  Md.  180.     1878. 

§  63.  Notice  of  loss  and  furnishing  of  proofs  are  con- 
ditions precedent,  compliance  with  which  must  be  shown, 
unless  waived.  Nine  days  after  limited  time  is  too  late. 
McDermott  v.  Lycoming  Fire  Ins.  Co.  12'  Jones  &  Sp.  221. 

1878.  ' 

§  64.  Agent  after  taking  sworn  statement  of  assured 
expressly  told  him  that  what  had  been  done  in  taking  his 
statement  in  writing  was  not  intended  to  waive  the  proofs 
required  by  the  policy ;  that  he  would  leave  with  the 
local  agent  of  the  company  a  blank  form  of  proofs  and 
that  the  local  agent  would  if  desired  aid  in  filling  them 
up;  the  blank  was  then  shown  to  the  assured  and  also 
clause  in  policy  in  regard  to  proofs.  Held,  not  sufficient 
evidence  of  waiver  of  proofs.  Ins.  Co.  of  N.  A.  v.  Bain- 
bridge,  7  Ins.  L.  J.  772.     1878.     Ky. 

§  65.  Submission  to  arbitration  of  the  amount  of 
loss  waives  all  proofs.  Bammesel  v.  Brewers'  Fire  Ins. 
Co.  7  Ins.  L.  J.  767.     1878.     Wis. 

§  66.  Semble,  that  when  assured  holds  four  policies 
of  the  same  company  upon  same  property  he  is  not  re- 
quired to  furnish  more  than  one  proof  of  loss.  Dakin  v. 
Li  v.,  L.  and  G.  Ins.  Co.  13  Hun,  122.     1878. 


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PROOFS  OF  LOSS. 


§  67.  When  action  is  brought  upon  a  parol  contract 
of  insurance,  evidence  that  a  policy  was  refused  is  equiva- 
lent to  a  denial  of  all  liability,  and  is  a  waiver  of  proofs. 
Weeks  v.  Lycoming  Ins.  Co.  7  Ins.  L.  J,  552.  1878.  U. 
S.  Circuit,  Vt. 

§  68.  Notice  of  loss  was  given  to  the  local  agent,  who 
informed  the  company,  and  latter  sent  an  adjuster  to  ascer- 
tain the  loss.  The  adjuster  told  the  assured  to  go  before  a 
justice  of  the  peace  and  make  proof  of  the  loss,  saying  he 
had  blanks  for  the  purpose.  They  started  together,  and 
then  occurred  conversation  in  reference  to  settlement,  and 
an  attempt  to  fix  the  sum,  which  however  was  not  agreed 
upon.  Finally  adjuster  left,  saying  he  would  pay  a  cer- 
tain sum  which  was  not  accepted  and  afterwards  with- 
drawn. Subsequently  assured  called  at  oflSce  of  local 
agent  to  accept  proposition  of  settlement  and  was  informed 
that  it  was  withdrawn.  Held^  that  while  constituting  a 
waiver  as  to  time,  it  was  no  evidence  of  a  waiver  of  con- 
dition requiring  proofs.  When  informed  of  the  with- 
drawal of  the  offer  it  was  the  duty  of  the  assured  then  to 
have  complied  with  the  condition.  Warner  v.  Ins.  Co.  of 
N.  A.  7  Ins.  L.  J.  628.     1878.    Pa. 

§  69.  It  is  a  question  for  a  jury  to  determine  whether 
delay  in  furnishing  proofs  is  unreasonable  and  whether 
they  have  been  furnished  "as  soon  as  possible "  after  a 
fire.     O'Brien  v.  Phcenix  Ins.  Co.  76  N.  Y.  459.     1879. 

§  70.  Mailing  proofs  of  loss,  postage  prepaid,  is,  in 
the  absence  of  evidence  that  they  were  not  received,  pre- 
sumptive' evidence  that  they  were  received  by  the  com- 
pany in  due  course  of  mail.  Bell  v.  Lycoming  Fire  Ins. 
Co.  19  Hun,  238.     1879. 

§  71.  Waiver  of  proofs  may  be  inferred  from  acts  and 
conduct  of  the  company  inconsistent  witli  an  intention  to 
insist  upon  strict  performance  of  the  condition.  Ilokes  v. 
Amazon  Ins.  Co.  51  Md.  512.     1879. 

§  72.  Policy  provided  that  assured  should  give  notice 
of  fire  forthwith,  "  and  within  fifteen  days  at  latest,  fur- 


PROOFS  OP  LOSS. 


265 


nish  a  particular  account,  &c.,  *  *  *  and  in  default 
thereof,  no  claim  should  be  payable  until  such  notice,  ac- 
count, <fec.,  are  given  and  produced."  Assured  having 
furnished  an  account  twenty-two  days  after  fire,  Held, 
that  his  furnishing  such  account,  from  peculiar  wording 
of  the  condition,  was  not  a  condition  precedent  to  his 
right  to  recover.  Weir  v.  Northern  Cos.  Ins.  Co.  4  L.  R. 
Ireland,  689.     1879. 

§  73.  When  loss  has  been  made  payable  to  a  third 
party,  who  becomes  the  owner  of  the  goods  insured  by  a 
warehouse  receipt,  the  latter  becomes  the  party  insured, 
and  can  make  and  fu^'nish  all  necessary  proofs.  Stanton 
V.  Home  Ins.  Co.  24  L.  C.  Jurist,  38.    1879. 

§  74.  Policy  insured  one  Jack  as  owner,  and  plaintiff 
as  mortgagee,  loss,  if  any,  being  made  payable  to  latter, 
by  whom  it  was  obtained.  Jack  was  an  infant  three 
years  of  age,  a  Mrs.  Gleavey  being  guardian.  After  a  fire, 
being  unable  to  obtain  proofs  signed  by  assured  or  guard- 
ian, the  plaintiff  brought  action  against  the  owner,  guard- 
ian, and  insurance  company,  asking  that  guardian  be 
directed  to  make,  or  that  some  proper  person  be  appointed 
as  special  guardian  to  make,  and  who  should  be  required 
to  make,  the  necessary  proofs ;  that  the  insurance  company 
be  adjudged  to  pay  amount  of  loss,  and  that  the  limita- 
tion clause  in  policy  for  Vjringing  of  an  action  be  not  al- 
lowed to  attach  or  take  effect  as  against  the  plaintiff. 
Upon  demurrer,  Held,  sustaining  the  demurrer,  that  the 
action  could  not  be  maintained.  Graham  v.  Phoenix  Ins. 
Co.  77  N.  Y.  171.     1879. 

§  75.  Policy  insured  "Margaret  E.  Jack,  as  owner, 
and  William  Graham,  mortgagee."  Proofs  of  loss  were 
made  and  furnished  by  the  latter,  and  returned  by  the 
company  with  objection  that  they  should  be  executed  by 
owner,  who  was  an  infant  three  years  of  age,  and  suggest- 
ing necessity  of  a  legal  guardian.  In  an  action  by  the 
mortgagee,  Held,  that  the  plaintiff  was  primarily  insured, 
and  that  the  oas*-  was  one  of  joint  insurance,  and  that  his 
act  in  furnishing  proofs  was  the  act  of  both  the  assured. 
Graham  v.  Phoenix  Ins.  Co.  17  Hun,  156.     1879. 


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PROOFS  OF  LOSS. 


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§  76.  When  insured  property  is  an  organ  and  is  to 
tally  destroyed,  assured  is  not  required,  under  a  demand 
for  a  further  schedule  after  proofs  are  furnished,  to  furnish 
any  further  particulars ;  that  the  schedule  required  must 
be  construed  as  meaning  an  inventory,  and  an  inventory 
of  a  single  article  is  made  by  naming  the  article.  If  com- 
pany has  a  right  to  a  full  description  of  all  the  specifica- 
tions of  the  organ  under  such  circumstances,  it  does  not 
become  operative  by  a  mere  demand  for  a  schedule.  Smith 
V.  Commonwealth  Ins.  Co.  49  Wis.  322.     1880. 

§  77.  When  a  loss  occurs  on  the  night  of  the  29th 
and  30th  of  the  mouth,  and  the  plaintiff  mails  proofs  on 
the  29th  of  the  following  month,  which  are  received  by 
the  company  on  the  31st,  condition  requiring  that  they  be 
furnished  within  thirty  days,  semhle  that  there  is  sufficient 
compliance  with  the  condition.  Badger  v.  Glen's  Falls 
Ins.  Co.  49  Wis.  389.     1880. 

§  78.  When  company  has  examined  the  assured  un- 
der oath,  and  thus  waived  formal  proofs,  the  sixty  days 
prescribed  to  run  before  the  loss  shall  become  due  and 
payable,  commences  from  the  time  of  the  delivery  of  such 
examination  to  the  agent  of  the  company.  Badger  v. 
Phojnix  Ins.  Co.  49  Wis.  396.     1880. 

§  79.  When  company  demands  that  the  assured  shall 
submit  to  an  examination  under  oath  before  formal  proofs 
of  loss  have  been  made,  and  he  submits,  and  answers  all 
questions  propounded  to  him,  there  is  a  waiver  of  proofs, 
unless  assured  is  notified  that  the  company  requires  for- 
mal proofs  in  addition  to  the  examination.  Badger  v. 
Phoenix  Ins.  Co.  49  Wis.  396.     1880. 

§  80.  Delivery  of  proofs  to  general  agent  at  his  re- 
quest is  a  waiver  of  any  right  to  have  them  delivered  at 
the  home  office  of  the  company.  Badger  v.  Phcenix  Ins. 
Co.  49  Wis.  39C.     1880. 

§  81.  Acceptance  of  proofs  after  the  expiration  of  the 
time  prescribed  by  the  condition,  and  statement  that  com- 
pany refuses  to  acknowledge  any  claim,  amounts  to  a 


PROOFS  OF  LOSS. 


267 


waiver.    Kelly  v.  Hochelaga  Mut.  Fire  Ins.  Co.  24  L.  C. 

Jurist,  298.     1880. 

§  82.  Where  loss  is  made  payable  to  a  mortgagee 
with  "  mortgagee  clause"  attached,  proofs  of  loss  may  be 
made  and  furnished  by  the  latter,  the  owner  refusing,  and 
policy  not  expressly  providing  otherwise.  Graham  v. 
Firemen's  Ins.  Co.  8  Daly,  421.     1880. 

§  83.  If  company  intends  to  avail  itself  of  objection 
that  proofs  are  not  furnished  in  time,  it  should  refuse  to 
receive  them  on  that  ground,  or  at  least  promptly  notify 
the  assured  of  its  determination,  otherwise  objection  should 
be  regarded  as  waived.  Brink  v.  Hanover  Fire  Ins.  Co. 
80  N.  Y.  108.     1880. 

§  84.  When  policy  requires  furnishing  of  proofs  of 
loss  "  as  soon  jbls  possible,"  reasonable  diligence  is  all  that 
is  required,  and  this  is  a  question  for  jury.  Brink  v.  Han- 
over Fire  Ins.  Co.  80  N.  Y.  108.     1880. 

§  85.  Assured  may  be  permitted  to  amend  his  prooL 
of  loss  and  complaint  upon  the  trial,  so  as  to  make  the  de- 
mand $2,000  instead  of  $800,  as  originally  claimed ;  such 
amount  being  the  full  amount  named  in  the  policy.  Miag- 
han  V.  Hartford  Fire  Ins.  Co.  24  Hun,  58.     1881. 

§  86.  In  an  action  upon  a  parol  contract  of  insurance, 
it  appeared  that  company  had  refused  to  issue  a  policy 
and  denied  all  responsibility.  Held,  waiver  of  proofs  re- 
quired by  condition  in  the  policy.  Paile  v.  St.  Joseph  F. 
<fe  M.  Ins.  Co.  10  Ins.  L.  J.  657.     1881.    Mo. 

See  Agent,  §  44,  46.  Books  of  Account,  3,  4.  Certificate,  5.  Construc- 
tion, 6.  Estoppel,  3,  10.  Evidence,  11,  13,  22,  73.  79,  91.  Examination,  1. 
Fraud  and  False  Swearing,  6.  Mutual  Company,  10.  Notice  of  Loas,  ft,  17. 
Other  Insurance,  40.  Payment  of  Loss,  1,  3.  Rebuild,  8.  Re-insurance,  11. 
Vacant  or  Unoccupied,  3«.     Waiver,  5,  27,  20,  35.     Who  may  Sue,  1. 


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QUESTIONS  FOR  COURT  AND  JURY. 

§  1.  A  question  as  to  waiver  of  notice  of  loss  is 
proper  to  be  submitted  to  the  juiy.  Drake  v.  Farmers' 
Union  Ins.  Co.  3  Grant  Cas.  325.     1862.  . 

§  2.  The  construction  of  a  writing  is  a  question  of 
law  for  the  court ;  although  it  seems  the  intention  of  the 
parties  may  be  submitted  to  the  jury,  without  constitut- 
ing error  suflScient  to  reverse  the  judgment,  where  it  ap- 
pears that  the  jury  have  construed  it  as  the  court  should 
have  done.  Germania  Fire  Ins.  Co.  v.  Curran,  8  Kans.  9. 
1871. 

§  3.  The  materiality  of  a  representation  is  a  question 
of  fact  for  the  jury,  but  the  policy  may  itself  provide  what 
facts  shall  be  deemed  material  by  converting  the  represen- 
tation into  a  warranty  or  by  mere  stipulation  as  to  its 
materiality.  In  such  case  where  the  parties  have  so 
agreed,  the  agreement  precludes  all  inquiiy  upon  the  sub- 
ject. Gershauser  v.  !N.  B.  <fc  Mercantile  Ins.  Co.  7  Nev. 
174.     1871. 

§  4.  It  is  for  the  jury  to  say  whether  the  assured  has 
strictly  and  literally  complied  with  the  warranty  to  keep 
a  watchman  in  the  mill  when  not  in  u .e.  Power  v.  City 
Fire  Ins.  Co.  8  Phil.  Rep.  566.     1871. 

§  5.  Questions  as  to  the  meaning  of  particular  words 
used  in  a  special  sense  are  for  the  jury.  Pitney  v.  Glen's 
Falls  Ins.  Co.  65  IT.  Y.  6.     1875. 

§  6.  An  appellate  court  has  no  right  to  enter  into  de- 
liberations of  a  jury  and  make  their  reasons  or  their  meth- 
ods a  ground  of  objection  if  they  have  reached  a  substan- 
tially just  result  as  to  amount.  Bayly  v.  Lond.  and  Lane. 
Ins.  Co.  4  Ins.  L.  J.  503.     1875.     U.  S.  Circuit,  La. 

§  7.  If  there  is  a  dispute  as  to  the  meaning  of  certain 
terms,  the  question  is  proper  to  be  submitted  to  the  jury, 


QUESTIONS  FOR  COURT  AND  JURY. 


2G9 


and  upon  their  finding  the  proper  legal  interpretation  will 
then  be  given  to  it  by  the  court ;  otherwise,  it  is  the  duty 
of  the  court  to  place  the  proper  construction  upon  all  writ- 
ten documents.  Billingtou  v.  Canadian  Mutual  Fire  Ins. 
Co.  39  Up.  Can.  Q.  B.  433.     1870. 

§  8.  A  question  of  fraud  in  obtaining  insurance 
money  on  untrue  proofs  should  be  determined  by  the  jury. 
Kurd  V.  St.  Paul  Ins.  Co.  39  Mich.  443     1877. 

§  9.  Whether  assured  has  used  due  exertions  to  save 
property  insured  or  not  is  a  proper  question  to  be  deter- 
mined by  a  jury.  Dean  v.  Western  Assur.  Co.  41  Up. 
Can.  Q.  B.  553.     1877. 

§  10.  When  the  award  of  arbitrators  is  a  nullity,  it 
should  be  removed  from  consideration  by  a  juiy.  Parsons 
v.  Citizens'  Ins.  Co.  43  Up.  Can.  Q.  B.  261.     1878. 

§  11.  If  jury  in  their  verdict  have  not  given  the  com- 
pany ci-edit  for  net  proceeds  of  the  property  saved,  verdict 
will  be  set  aside.  McLeod  v.  Citizens'  Ins.  Co.  3  Russel  & 
C.  N.  S.  156.     1878. 

§  12.  When  the  facts  are  indisputable,  the  question 
of  materiality  becomes  one  of  law  to  be  decided  by  the 
court,  llyan  v.  Springfield  Fire  Ins.  Co.  46  Wis.  671. 
1879. 

§  13.  If  there  is  a  single  change,  such  as  a  new  use  of 
the  buildings  or  an  alteration  in  them,  jury  is  to  aay 
whether  upon  the  whole  the  risk  is  increased.  If  there 
are  two  or  more  changes  unconnected  with  each  other,  and 
one  has  increased  the  risk,  it  is  no  answer  to  the  plea  of 
forfeiture  to  say  that  something  else  has  diminished  it. 
Within  this  rule  it  is  proper  for  jury  to  inquire  whether 
stopping  a  mill  is,  upon  the  whole,  considering  the  de- 
crease of  risk  from  accidental  fires  and  tlie  increase  from 
discbarge  of  watchman  and  want  of  power  for  a  force  pump, 
such  a  change  in  the  use  and  occupation  of  the  premises  as 
to  increase  the  risk.  Albion  Lead  Works  v.  Williams- 
burg City  Ins.  Co.  9  Ins.  L.  J.  435.  1880.  U.  S.  Circuit 
Court,  Mass. 


1 

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i 

270 


QUESTIONS  FOR  COURT  AND  JURY. 


§  14.  The  question  as  to  whether  agent  of  company 
who  issued  policy  was  agent  of  assured  for  purpose  of  can- 
cellation is  proper  to  be  determined  by  a  jury.  Roger 
Williams'  Ins.  Co.  v.  Carrington,  9  Ins.  L.  J.  577.  1880. 
Mich. 

§  15.  It  is  difficult  to  say  as  matter  of  law  that  "  flax  " 
is  not  included  in  the  term  "  grain,"  and  question  is  one 
for  jury  to  determine.  When  policy  covers  "grain  in 
stacks,"  ifec,  parties  must  be  presumed  to  have  intended  to 
include  by  the  terra  "  grain "  flax  in  stack.  Hewitt  v. 
Watertown  Fire  Ins.  Co.  "lO  Ins.  L.  J.  375.     1 S80.    Iowa. 

§  16.  If  parties  to  an  insurance  contract  have  a  differ- 
ent understanding  of  an  oral  contract,  after  it  is  reduced 
to  writing  and  executed,  both  are  bound  in  equity  and  at 
law  by  the  terms  of  the  written  contract,  and  it  must  ])e 
construed  by  the  court.  German  American  Ins.  Co.  v. 
Davis,  10  Ins.  L.  J.  670.     1881.     Mass. 

§  17.  When  there  is  a  dispute  between  the  agent  who 
filled  in  the  application  and  made  the  diagram  and  the  as- 
sured, as  to  whether  the  latter  actually  stated  the  distance 
of  an  exposure  as  represented  by  the  agent  in  the  diagram, 
question  of  misrepresentation  as  affecting  or  increasing  the 
risk  should  be  submitted  to  the  jury.  Pottsville  Mutual 
Ins.  Co.  V.  Meckes,  10  Ins.  L.  J.  717.     1881.    Fa. 

See  Adjustment,  §  12.     Agent,  39,  56.     Alienation,  11.    Ai   ■        ..in,  15. 
Books  of  Account, /).    Cancellation,  7,  24.    Certificate,  9.     CJn  .;f -    ■  e.nt,  1, 

9.  Construction,  8.  Damages,  1.  Encumbrance,  1.  Evideac..  6  31,40, 
71,  81,  85,  89.  Foreign  Company,  7,  Fraud  and  False  SwPh.uig,  15. 
Goods  in  Trust,  10.  Illegality  of  Contract,  4.  Increase  of  Risk,  0,  8, 11,  12, 
28.  Mutual  Company,  23,  86,  102,  116.  Notice  of  Loss,  7,  10,  22,  Other 
Insurance,  37.    Overvaluation,  1, 10.    Pleading  and  Practice,  20.    Premium, 

10.  Proofs,  19,  23,  27,  32,  43,  44,  69,  84.  Rebuild,  7.  Reformation,  Ifi. 
Storing  and  Keeping,  4,  11,  17,  21,  23.  Title,  52.  Use  and  Occupation,  8. 
Vacant  and  Unoccupied,  10,20,  21,  32,34,43,  43.  Waiver,  17.  Warranty 
and  Representation,  4,  15,  45,  09.  101,  108.  Watchman,  6.  What  Properly 
Covered,  20,  29. 


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REBUILD  OR  REPLACE. 

§  1.  When  company  has  exercised  its  option  to  re- 
build, an  injunction  cannot  be  sustained  at  the  instance  of 
the  assured  restraining  the  company  from  thus  rebuilding, 
notwithstanding  the  company  proceeds  without  obtaining 
any  plans  of  the  building  described,  and,  contrary  to  the 
objection  of  the  assured,  have  varied  what  was  the  known 
plans  of  the  old  building.  Home  District  Ins.  Co.  v. 
Thompson,  1  Grant  Err.  &  App.  247.     1847. 

§  2.  Exercise  of  option  to  rebuild  converts  contract 
of  insurance  into  a  building  contract.  Beals  v.  Home  Ins. 
Co.  2  Tr.  App.  25.     1867. 

§  3.  The  election  to  restore  or  repair  must  be  made 
within  the  prescribed  time,  which  cannot  be  extended  by 
failure  or  neglect  of  local  agent  upon  whom  proofs  were 
served,  to  forward  them  to  the  company  or  its  general 
agent.  Delivery  of  proofs  to  local  agent  is  delivery  to 
company.     Ins.  Co.  of  N.  A.  v.  Hope,  58  111.  75.     1871. 

§  4.  Company  had  notified  assured  of  its  election  to 
rebuild,  but  neglecting  to  do  so  action  was  brought. 
Contract  provided  that  sum  expended  in  rebuilding  should 
not  exceed  amount  insured.  Jury  were  charged  that  "  the 
company  was  bound  to  rebuild  the  building  destroyed, 
cost  what  it  may.''''  Held,  error.  Further,  that  if  com- 
pany neglected  to  proceed  within  reasonable  time  after 
notice  to  rebuild,  assured  might  disregard  it  and  sue  upon 
the  policy,  and,  with  proper  averments,  recover  the  amount 
of  the  policy  and  interest,  and  the  rental  value  of  the 
ground  during  time  of  delay  caused  by  act  of  the  com- 
pany.    Home^Mut.  Ins.  Co.  v.  Garfield,  GO  111.  124.     1871. 

§  5.  An  election  to  repair  with  knowledge  of  the 
facts  operates  as  a  waiver  of  condition  requiring  statement 
of  title  in  policy.  Am.  Cent.  Ins.  Co.  v.  McLanathan,  11 
Kans.  533.     1873. 


F 


it         SI 


V5 


IV 


272 


REBUILD  OR  REPLACE. 


s 
1  ti 


§  6.  Company  having  elected  to  repair  and  finally 
declining  to  do  so  is  liable  to  damages  caused  by  the  delay. 
It  must  pay  what  it  would  cost  to  make  repairs  at  time  of 
refusal.  Am.  Cent.  Ins.  Co.  v.  McLanathan,  1 1  Kaus.  533. 
1873. 

§  7.  The  facts  that  assured  is  present  while  company 
is  rebuilding  and  makes  no  complaint  or  suggestions, 
although  requested  to  do  so,  and  points  out  no  objections 
when  work  is  finished,  are  proper  to  be  considered  by  jury 
as  evidence  of  no  defects.  Court  charcred  jury  that  "it 
was  not  duty  of  plaintiff  to  superintend  or  make  sugges- 
tions. When  defendant  undertook  to  repair  it  did  so  at 
its  own  risk  and  peril."  Held,  error,  as  it  naturally  led 
jury  to  discard  above  facts  as  not  being  entitled  to  any 
consideration.  St.  Paul  F.  &  M.  Ina.  Co.  v.  Johnson,  77 
111.  598.     1875. 

§  8.  Where  company  electa  to  rebuild,  there  can  be 
no  claim  for  rent  during  the  time  necessarily  taken  for  that 
purpose ;  there  is  no  foundation  for  such  claim  until,  at 
least,  after  a  reasonable  length  of  time  has  elapsed.  St. 
Paul  F.  &  M.  Ins.  Co.  v.  Johnson,  77  111.  598.     1875. 

§  9.  A  rebuilding  of  property  by  a  third  party  does 
not  release  the  insurance  company  from  the  obligation 
under  its  policy.  People's  Ins.  Co.  v.  Straehle,  2  Cin.  Supr. 
Ct.  186.     1878. 

§  10.  When  replacement  is  not  a  condition  of  the 
contract  as  originally  written,  company  cannot  by  a  sub- 
sequent amendment  of  its  by-laws  acquire  such  right. 
Bradfield  v.  Union  Mutual  Ins.  Co.  10  lus.  L,  J.  550. 
1881.     Common  Pleas,  Pa. 

See  Garnishment,  §  .S,     Mortgagor  and  Mortgagee,  31,  33,  48.     Proofs  of 
Loss,  44. 


i  H 


RECOVERY  BACK  OP  LOSSES  PAID. 

§  1.  Company  after  payment  of  the  loss  ascertained 
tliat  the  assured  had  made  a  false  representation  as  to  his 
being  the  owner  of  the  property,  when  it  was  in  fact 
owned  by  his  father.  Assured  being  threatened  with 
prosecution  and  arrest  for  obtaining  the  money  paid  to 
Jiim,  in  order  to  avoid  it  gave  his  note  to  the  company  for 
the  amount  which  had  been  paid,  $700.  Company  having 
brought  action  upon  the  note  and  the  policy  not  being 
produced  in  evidence,  and  it  not  being  shown  that  com- 
pany was  entitled  to  recover  back  the  money  paid,  the 
case  was  reduced  to  simply  one  of  a  note  given  for  no 
other  consideration  than  to  avoid  prosecution  for  criminal 
misdemeanors,  and  that  jdaintiffs  could  not  recover.  Can- 
ada Farmers'  Ins.  Co.  v.  Watson,  25  Up.  Can.  C.  P.  1. 
1875. 

§  2.  A  compromise  settlement  cannot  be  impeached 
by  reason  of  facts  indicating  fraud  subsequently  discov- 
ered. British  America  Ins.  Co.  v.  Wilkinson,  2.^  Grant 
Ch.  151.  1870.  Contra^  Queen  Ins.  Co.  v.  Devinney,  25 
Grant  Ch.  394 ;  1878 ;  where  it  was  subsequently  dis- 
covered that  the  assured  had  intentionally  caused  the  fire. 

§  3.  If  assured  is  guilty  of  a  fraud  after  tbe  fire  in 
connection  with  his  clami  for  a  loss  which  the  company 
pays,  upon  its  discoveiy  the  latter  may  maintain  an  action 
in  assumpsit  for  money  had  and  received  to  recover  amount 
so  paid.  In  such  case  it  is  not  necessary  to  entitle  com- 
pany to  sue  that  it  should  fiist  return  or  ofiijr  to  return  to 
the  assured  the  customary  receipt  and  voucher  given  by 
him  on  receipt  of  the  insurance  money.  Johnson  v.  Con- 
tinental Ins.  Co.  39  Mich.  33.     1877. 

Soe  Questions  for  Court  and  Jury,  §  8. 


M'i\< 


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Vol.  II.— 18 


IT 


sin 


i 


REFORMATION  OF  POLICY. 

§  1.  Court  should  not  reform  a  policy  by  indorsing 
permission  for  other  insurance  without  clear  and  satisfac- 
tory proof  of  an  agreement  so  to  do.  Fellowes  v.  Madi- 
son Ins.  Co.  2  Disney,  Cin.  Supr.  Ct.  128.     1858. 

§  2.  A  policy  issued  for  a  greater  length  of  time  than 
intended  by  the  parties  may  be  reformed  and  canceled  in 
equity  after  a  loss,  in  a  suit  by  the  company.  North 
American  Ins.  Co.  v.  Whipple,  2  Biss.  418.     1871. 

§  3.  When  the  policy  does  not  contain  the  true  con- 
tract between  the  parties  and  assured  depends  upon 
knowledge  of  company's  agent  to  alter  its  terms,  suit  can- 
not be  maintained  upon  it  in  an  action  at  law,  and  a  rem- 
edy is  to  be  obtained  by  a  reformation  in  equity.  Craw- 
ford V.  Western  Ins.  Co.  23  Up.  Can.  C.  P.  365.     1873. 

§  4.  The  fact  that  a  suit  to  reform  a  policy  of  insur- 
ance is  not  brought  until  after  a  loss  is  a  circumstance 
that  should  be  taken  into  consideration  by  a  trial  court 
in  weighing  the  testimony  and  determining  whether  a 
mistake  was  made.  Van  Tuyl  v.  Westchester  Fire  Ins. 
Co.  55  N.  y.  657.     1873.    Affi'g  67  Barb.  72. 

§  5.  The  mistake  which  will  warrant  a  court  of  equi- 
ty to  reform  a  contract  in  writing  must  be  one  made  by 
both  parties  to  the  agreement,  so  that  the  intentions  of 
neither  are  expressed  in  it;  or  it  must  be  the  mistake  of 
one  party  by  which  his  intentions  have  failed  of  correct 
expression,  and  there  must  be  fraud  in  the  other  party  in 
taking  advantage  of  the  mistake  and  obtaining  a  contract 
with  the  knowledge  that  the  one  dealing  with  him  is  in 
error  in  regard  to  what  are  its  terms.  Bryce  v.  Lorillard 
Fire  Ins.  Co.  55  N.  Y.  240.  1873.  s.  p.  Maher  v.  Iliber- 
nia  Ins.  Co.  67  N.  Y.  290.     1876. 

§  6.  Assured  cannot  sustain  an  action  for  reformation 
after  he  has  failed  in  an  action  at  law  upon  the  policy  as 


REFORMATION  OF  POLICY. 


275 


written.  Washburn  v.  Crr^'at  Western  Ins.  Co.  4  Ins.  L. 
J.  112.  1873.  Mass.  s.  p.  fe;einbach  v.  Relief  Ins.  Co.  77 
N.  Y.  498.     1870. 

§  7.  Court  cannot  make  a  contract  which  was  not  in 
fact  made,  even  where  failure  to  make  insurance  which 
assured  desired,  is  owing  to  company's  misapprehension  of 
the  application.  Mead  v.  Westchester  Fire  Ins.  Co.  64  N. 
Y.  453.     1876. 

§  8.  An  action  may  be  brought  for  reformation  of 
policy,  and  for  a  recovery  upon  it  as  reformei^.,  at  the  same 
time,  and  it  seems  it  is  not  irregular  to  try  such  action  be- 
fore a  judge  and  jury,  and  it  is  immaterial  that  judgment 
is  for  amount  of  loss  only,  without  in  express  terms  de- 
creeing reformation.  Maher  v.  Hibernia  Ins.  Co.  67  N.  Y. 
283,  292.  1876.  s.  p.  Ben  Franklin  Ins.  Co.  v.  Gillett,  9 
Ins.  L.  J.  774.     1880.     Md. 

§  9.  To  justify  reformation  of  a  policy,  the  proof  that 
hoth  parties  agreed  to  something  diflPerent  from  what  is 
expressed  should  be  so  clear  and  convincing  as  to  leave 
no  room  for  doubt.  Mead  v.  Westchester  Fire  Ins.  Co.  64 
N.  Y.  453.  1876.  s.  p.  Dean  v.  Equitable  Fire  Ins.  Co. 
8  Ins.  L.  J.  773.  1878.  U.  S.  Circuit,  Mass.  German 
American  Ins.  Co.  v.  Davis,  10  Ins.  L.  J.  670.  1881. 
Mass.    Miaghan  v.  Hartford  Ins.  Co.  12  Hun,  321.     1877. 

§  10.  A  company  can  have  no  relief  in  equity  after  a 
loss,  in  respect  to  those  matters  which  by  law  afford  a 
complete  defense  in  an  action  upon  the  policy.  Imperial 
Fire  Ins.  Co.  v.  Gunning,  81  111.  236.     1876. 

§  11.  If  the  application  be  prepared  by  agent  of  the 
company,  and  he  misdescribes  the  premises  with  full 
knowledge  of  their  actual  condition,  and  there  be  no  fraud 
or  collusion  between  the  agent  and  the  insured,  the  con- 
tract of  insurance  may  be  reformed  in  equity  and  made  to 
conform  to  the  condition  of  the  premises  as  they  were 
known  to  the  agent.  But,  in  an  action  at  law,  the  rights 
of  the  parties  must  be  determined  by  the  contract  as  made, 
which  cannot  be  altered  or  modified  by  extrinsic  evidence 


^^^^ 


III!!! 


276 


RErOEMATlON  OF  POLICY. 


of  a  different  af];recment,  to  be  establisluul  from  a  knowl- 
edge of  tlie  company  or  its  agents.  When  the  company 
defends  on  the  ground  of  a  breach  of  warranty,  it  is  no 
answer  that  it  knew  that  such  wananty  was  not  in  fact 
true.  Franklin  Fire  Ins.  Co.  v.  Martin,  11  Vroom,  N.  J.L. 
E.  5G8.     1878. 

§  12.  Where  there  has  been  nn  innocent  omission  or 
misstatement  of  a  material  stipulation  contrary  to  the  in- 
tention of  both  parties,  equity  will  reform  the  contract. 
Ins.  Co.  V.  Lewis,  48  Tex.  0l>2.  1878.  Texas  Ins.  Co.  v. 
Stone,  49  Tex.  4.     1878. 

§  1'^  Policy  containing  a  mutual  mistake  in  descrip- 
tion will  be  reformed  in  equity.  Home  Ins.  Co.  v.  Myer, 
y;i  111.  271.     1879. 

§  14.  Negligence  of  assured  in  not  discovering  changoa 
in  policy  delivered  as  a  renewal,  and  laches  in  not  seeking 
relief,  are  questions  which  make  the  propriety  of  granting 
relief  (reformation)  in  a  given  case  discretionary.  Hay  v. 
Star  Fire  Ins.  Co.  77  N.  Y.  235.     1879. 

§  15.  A  party  whose  duty  it  is  to  pre[)are  a  written 
contract  in  pursuance  of  a  previous  agreement,  to  prepare 
one  materially  changing  the  terms  of  such  previous  agree- 
ment and  deliver  it  as  in  accordance  therewith,, commits 
fraud  which  entitles  other  party  to  relief.  Equity  will 
reform  a  written  instrument  where  there  is  mistake  on  one 
side  and  fraud  upon  the  other.  Hay  v.  Star  Fire  Ins.  Co. 
77N.  Y.  235.     1879. 

§  16.  Prayer  for  reformation  gives  jnrisdiction  in 
equity.  If  policy  is  reformed  court  retains  juiisdiction 
for  the  determination  of  all  issues  which  may  be  made 
upon  it;  and  issues  of  fact  will,  if  required,  be  tried  by  a 
jury.    Hammel  v.  Queen  Ins.  Co.  50  Wis.  240.     1880. 

§  17.  By  agreement  between  local  agent  of  company 
and  assured  risk  was  to  commence  when  premium  was 
paid,  which  was  on  May  12,  1877.  The  agent  subse- 
quently made  out  a  policy  on  May  14th  and  mailed  it  to 
the  assured.     The  risk  was  made  to  commence  from  the 


BE-INSURANCB. 


277 


day  it  was  written,  May  14th,  12  o'clock,  noon.  The  lum- 
ber insured  waa  destroyed  by  fire  during  the  forenoon  of 
May  14th.  Ileld^  that  policy  should  he  reformed  to  ex- 
press contract  actually  made,  and  that  plaintiff  was  enti- 
tled to  recover.  Knox  v.  Lycoming  Ins.  Co.  10  Ins.  L.  J. 
89.     1881.     Wis. 

§  18.  A  mutual  mistake  of  law  induced  by  represen- 
tation of  company'?,  agent  may  be  corrected  in  equity  by 
reformation.  Sias  v.  Roger  Williams'  Ins.  Co.  10  Ins.  L. 
J.  500.     1881.     U.  IS.  Circuit,  N.  H. 

See  Agent.  §  63,  103.  Description,  2.  Estoppel,  25.  Evidence,  68, 
Mortgagor  and  Mortgagee,  18.  Other  Insurance,  45.  Parol  Contract,  7. 
Pleading  and  Practice,  17.  Proofs  of  Loss,  41.  Questions  for  Court  and 
J,ury,  10.     Warranty  and  Representation,  107. 


RE-INSURANCE. 


r  'I 
!   1 


§  1.  The  right  of  a  re-insuring  company  to  relief  in 
equity,  does  not  depend  upon  the  fiict  of  payment  to  the 
original  assured.  Phil.  Trust  Ins.  Co.  v.  Fame,  9  Phil.  Rep. 
292.     1872. 

§  2.  The  meaning  of  clause  in  re-insurance  policy, 
"  loss  if  any  payable  at  same  time  and  pro  rata  with  the 
insured,"  is  that  tlie  liability  of  the  re-insuring  company  is 
to  be  no  greater  than  that  of  the  original  company ;  that 
they  are  not  to  be  compelled  to  pay  any  faster,  and  are  to 
have  the  benefit  of  any  defense  which  original  company 
would  have  had.  Any  deduction,  any  equity,  which  orig- 
inal company  would  have  had  against  the  original  as- 
sured, enures  to  benefit  of  re-insuring  company.  The 
company  primarily  liable  cannot  have  its  claim  limited 
by  its  ability  to  meet  its  own  obligation.  Ex  Parte 
Norwood,  3  Biss.  504.  1873.  See  note  on  liability  of 
re-insurer.  Id.  s.  p.  Cashau  v.  Northwestern  Nat.  Ins. 
Co.  5  Id.  476.     1873. 


WtT 


278 


RE- INSURANCE. 


§  3.  Where  an  agent  of  a  company  is  directed  by  it 
to  cancel  a  policy  issued  by  him,  and  he  makes  an  appli- 
cation  to  another  company  for  re-insurance,  which  is  ac- 
cepted, but  subsequently  it  is  agreed  that  latter  shall  issue 
policy  directly  to  the  assured,  and  does  so,  Ileld^  that 
former  company  could  not  maintain  an  action  upon 
ground  of  re-insurance ;  but  that  when  claim  svas  made 
against  it,  and  the  question  of  liability  is  not  clear,  it 
could  purchase  and  take  by  assignment  from  the  assured 
his  claim  against  the  latter  after  a  fire.  Excelsior  Fire 
Ins.  Co.  V.  Royal  Ins.  Co.  55  N.  Y.  343.     1873. 

§  4.  Original  company  insured  to  amount  of  $6,000. 
Amount  re-inrured,  $2,000.  Former  paid  $C00  in  full  dis- 
charge of  liability.  Re-insurance  policy  contained  clause 
"  loss,  if  any,  payable  pro  rata  at  the  same  time  and  in 
the  same  manner  as  the  re-insured  company."  Ileld^  that 
the  reinsuring  company  was  bound  to  pay  only  at  the 
same  rate  as  the  re-insured,  and  as  the  latter  paid  only  ten 
cents  on  the  dollar  of  its  insurance,  the  former  was  only 
liable  to  pay  at  same  rate — that  is,  ten  cents  on  the 
amount  re-insured,  or  $200.  111.  Mut.  Fire  Ins.  Co.  v. 
Andes  Ins.  Co.  67  111.  362.  1873.  s.  p.  Norwood  v.  Reso- 
lute Ins.  Co.  4  Jones  «fe  Sp.  552.     1873. 

§  5.  Under  a  contract  of  re-insurance,  the  extent  of 
the  liability  of  the  re-insurer  is  not  aftected  by  the  insol- 
vency of  the  reassured  nor  by  its  inability  to  fulfil  its 
own  contract  with  the  original  insured.  Blackstone  v, 
Allemania  Fire  Ins.  Co.  56  N.  Y.  104.     1874. 

§  6.  Where  re-insurance  is  for  one-half  the  original 
amount,  and  policy  contains  clause  as  follows :  "  Loss,  if 
any,  payable  pro  rata  at  the  same?  time  with  the  re-insured," 
and  loss  is  less  than  amount  of  original  insurance,  JTelii^ 
by  virtue  of  first  part  of  the  clause  defendant  not  bound 
to  pay  full  amount  reinsured,  but  only  such  })roportiop  of 
amount  of  loss  as  is  in  the  ratio  of  amount  of  re-insurance 
to  amount  originally  insured.  That  defendant  was  liable 
therefore  for  only  half  the  loss.  The  latter  part  of  the 
clause  looks  to  time  of  payability  and  not  to  iact  of  pay- 
ment.    It  fixes  same  period  for  duty  of  payment  by  re- 


RE-INSORANCE. 


279 


1  by  it 
appli. 
is  ac- 
tU  issue 
^A  that 
upon 
made 
clear,  it 
assured 
ior  Fire 

$6,000. 
full  dis- 

clause 

Lid  iu 
Id^  that 

at  the 
'nly  ten 
as  only 
on    the 

Co.  V. 
J.  Reso- 

tent  of 
J  insol- 
ilfil  its 
;one  v. 

riginal 

1<0S8,  if 

lured," 
HeU, 
bound 
iiop  of 
irance 
liable 
)f  the 
:  pay. 
by  re- 


insurer   as    was  fixed  for  payment   by  the  re-insured. 
Blackstone  v.  AUemania  Fire  Ins.  Co.  56  N.  Y.  104.     1874. 

§  7.  The  4th  section  of  the  Statue  of  19  Geo.  II,  ch. 
37,  which  has  been  adopted  and  is  in  force  in  Maryland, 
prohibiting  re-insurance,  applies  exclusively  to  marine  in- 
surance, and  does  not  prohibit  re-insurance  by  fire  com- 
panies. Consol.  Real  Est.  Co.  v.  Cashow,  41  Md.  59. 
1874. 

§  8.  The  insolvency  of  the  original  insurer  in  no  wise 
affects  or  limits  responsibility  of  the  re-insuring  company. 
If  the  original  assured  be  paid  but  a  small  dividend,  the 
reinsurer  is  still  liable  to  pay  the  whole  amount  due  un- 
der its  contract  to  the  trustee  of  original  insurer,  without 
deducting  the  dividend,  and  the  original  assured  has  no 
claim  in  respect  of  the  money  so  paid.  Consol.  Real  Est. 
Co.  V.  Cashow,  41  Md.  59.     1874. 

§  9.  Under  the  clause  in  re-insurance  policy  "  loss,  if 
any,  payable  'pro  rata,  «fec.,"  the  insurance  being  for  one- 
half  of  the  original  amount,  company  is  liable  for  only 
one-half  of  the  loss.  Consol.  Real  Est.  Co.  v.  Cashow,  41 
Md.  69.     1874. 

§  :•  0.  Under  clause  in  re-insurance  policy  that  loss  is 
payable  at  same  time  with  the  re-insured  it  is  not  neces- 
sary that  actual  payment  by  the  re-insured  precede  or 
accompany  payment  by  the  re-insurer.  It  looks  to  the 
time  of  payability  and  not  to  the  fact  of  payment.  It 
fixes  the  same  period  for  the  duty  of  payment  by  the  re- 
insurer as  was  fixed  for  payment  by  the  re-insured. 
Consol.  Real  Est.  Co.  v.  Cashow,  41  Md.  59.     1874. 

§  11.  Clause  in  re-insurance  policy,  that  it  is  "subject 
to  same  risks,  valuations,  conditions,  and  mode  of  settle- 
ment as  are  or  may  be  adopted  or  assumed  by  said  (re- 
insured) company,"  dispenses  with  preliminary  proof,  and 
fastens  the  responsibility  of  the  re-insurer  to  the  settle- 
ment and  adjustment  made  by  the  re-insured  company 
with  the  original  assured,  as  to  the  amount  of  loss.  Con- 
sol. Real  Est.  Co.  v.  Cashow,  41  Md.  59.     1874. 


1 


t'i 


(      l! 


JJ 


280 


RE-INSURANCE. 


§  12.  A  re-insuring  company  may  purchase  claims 
under  the  policies  re-insured  by  it,  and  in  an  action 
brought  by  assignee  of  re-insured  company,  may  set-off 
the  amount  of  such  claims  against  its  liability  under  the 
contract  of  re-insurance.  Ilovey  v.  Home  Ins.  Co.  3  Ins. 
L.  J.  815.     1874.     U.  S.  Circuit,  Ohio. 

§  13.  Re-insurer  is  bound  by  the  result  of  a  litigation 
between  the  original  insured  and  the  re-insured,  provided 
he  has  notice  of  the  litigation  and  has  an  opportunity  to 
manage  and  control  it.  Strong  v.  Phcenix  Ins.  Co.  G2  Mo. 
289.     1876. 

§  14.  There  is  no  priority  between  the  original  as- 
sured and  the  re-insured ;  the  liability  over  of  the  re- 
insured is  exclusively  and  solely  to  there-insured.  Strong 
V.  Phoenix  Ins.  Co.  62  Mo.  289.  1876.  Gantt  v.  Ameri- 
can Central  Ins.  Co.  68  Mo.  503.     1878. 

§  15.  Where  company  is  in  fact  insolvent,  although 
unknown  to  its  diiectors, it  cannot  re-insure  a  limited  por- 
tion of  its  risks  without  rendering  the  directors  person- 
ally liable  to  holders  of  policies  not  covered  by  the  re- 
insurance, under  2  R.  S.  (5th  ed.)  519.  1  Edm.  Stat. 
549,  550.  And  such  liability  is  not  affected  by  the  fact 
that  the  re-insuring  company  is  not  authorized  to  do  busi- 
ness in  the  State,  it  having  performed  the  agreement  on 
its  part.  Ileld^  however,  m  such  an  action  there  should 
be  credited  and  deducted  from  the  sum  paid  for  the  re- 
insurance, the  amount  of  losses  company  or  its  receiver 
would  have  been  ol)liged  to  pay  under  the  re-insured 
policies.     Casserly  v.  Manners,  9  Ilun,  695.     1877. 

§  16.  A  court  of  equity  has  jurisdiction  to  entertain 
and  enforce  a  bill  by  assignee  of  a  re-insured  company 
against  a  re-insuring  company  to  enforce  the  latter's  con- 
tract, and  resort  may  be  had  to  ecpiity  before  payment  to 
the  original  insured  ;  the  loss  was  jiayable  pro  rata  at  such 
times  and  in  such  manner  as  the  reinsured  company  may 
pay.  Held,  that  the  words  "  may  ])ay  "  are  equivalent  to 
liable  to  pay.  Fame  Ins.  Company's  Ajipeal,  83  Pa.  396. 
1877. 


claims 
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RE-INSDKANCE. 


281 


§  17.  Re-insurance  policy  contained  clause  as  follows : 
"  subject  to  the  same  conditions  and  mode  of  settlement, 
payable  p7'0  rata,  <fec. ; "  Held,  that  the  company  was  not 
entitled  to  notice  of  the  loss  as  prescribed  by  condition  in 
the  original  policy,  but  that  it  could  take  advantage  of 
any  want  of  compliance  with  the  contract  between  the 
original  parties;  if  company  is  entitled  to  notice  it  could 
not  be  held  as  a  matter  of  law  that  a  delay  of  thirty-one 
days  is  a  violation  of  a  condition  requiring  imviediate 
notice,  there  being  no  evidence  showing  the  proximity  of 
the  company  to  the  fire  or  to  the  plaintiff.  North  Penn- 
sylvania Fire  Ins.  Co.  v.  Susquehanna  Mutual  Fire  Ins.  Co. 
2  Pearson,  291.     1877. 

§  18.  Re-insurance  policy  provided  as  follows:  "This 
re-insurance  is  subject  to  the  same  specifications,  terms 
and  conditions  as  policy  No.  434,292  of  the  Northern  In- 
surance Company  which  it  re-assures,  it  being  well  under- 
stood that  the  Northern  Insurance  Co.  do  not  retain  any 
sum  or  risk  on  the  property  covered  by  this  policy,  but 
retain  an  amount  equal  at  least  thereto  on  other  parts  of 
Hamilton  &,  Sons'  Works."  On  the  1 6th  of  March,  1876, 
when  the  re-insurance  risk  commenced,  the  re-insured 
company  had  three  policie?*  on  different  portions  of  the 
Hamilton  Works :  thai  which  the  re-insuring  company 
insured  was  for  $2,800 ;  the  other  two  for  $2,500  each. 
One  of  the  latter  expired  on  the  1st  of  November,  1876. 
This  the  reinsured  company  were  ready  to  renew  and 
sent  the  ordinary  receipt  to  an  agent  for  that  purpose,  but 
the  assured  not  desiring  to  continue  the  insurance  the 
receipt  was  returned,  although  not  until  after  the  fire  had 
occurred.  The  re-insurod  company  paid  the  whole  of  the 
$2,800  due  on  the  other  policy  for  that  amount,  and 
claimed  from  the  re-insuring  company  $2,200,  being  the 
proportion  of  the  loss  falling  uii'ler  policy  in  suit,  it  being 
claimed  that  the  re-insured  company  had  been  guilty  of  a 
breach  of  the  above  condition.  Jleld,  that  its  obvious 
purpose  was  to  guard  against  the  re-insured  company  from 
further  re-insuring  to  an  extent  which  would  lower  its  in- 
terest  in  the  picniises  beneath  that  of  the  re-insuring  com- 
re  to  retain  their  insurance  to  an  amount 


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282 


RE-INSURANCE. 


equal  to  that  re-insured,  and  they  did  retain  it  to  the  full 
amount.  They  did  not  re-insure  or  otherwise  get  rid  of 
their  risk,  and  that  there  was  no  breach  of  the  condition. 
Canada  Ins.  Co.  v.  Northern  Ins.  Co.  2  Tupper,  373.     1878. 

§  19.  The  re-assured  is  not  obliged  in  order  to  main- 
tain action  against  the  re-insurer  to  show  that  it  has  paid 
the  loss.  It  may  at  once  resort  to  an  action  against  the 
re-insurer,  and  to  such  action  the  re-insurer  may  make  the 
same  defense  which  the  re-assured  could  make  against  the 
original  assured,  or  the  re-assured  may  await  a  suit  by  the 
first  assured,  and  where  it  is  brought  give  notice  of  it  to 
the  re-insurer,  and  on  being  subjected  to  damages,  recover 
them,  together  with  the  costs  and  expenses  of  the  litiga- 
tion of  the  re-insured.  Gantt  v.  American  Central  Ins. 
Co.  68  Mo.  503.     1878. 

§  20.  Extent  of  liability  of  re-insurer  is  not  contin- 
gent  upon  the  amount  paid  by  the  re-aasured,  nor  upon 
any  payment  whatever  by  him.  When  the  loss  occurs 
which  is  covered  by  a  policy  of  re-insurance,  the  re-assured 
is  entitled  to  recover  from  the  re-insurer,  not  what  he  has 
paid,  but  ail  that  he  has  become  liable  to  pay  by  reason 
of  such  loss.  Gantt  v.  American  Central  Ins.  Co.  68  Mo. 
503.     1878. 

§  21.  If  the  re-insuring  company  has  notice  that  the 
re-insured,  in  an  action  brought  upon  the  original  policy 
by  the  original  assured  that  all  inducement  to  a  vigorous 
and  faithful  defense  is  destroyed  by  reason  of  the  divesti- 
ture of  its  interest  in  the  subject-matter  of  the  controversy, 
and  it  does  not  wish  to  risk  the  issue  of  a  trial  under  such 
circumstances  as  a  party  who  is  to  be  bound  by  the  judg- 
ment, it  has  the  right  to  bring  that  fact  to  the  attention 
of  the  court,  and  to  assume  control  of  the  litigation  for  tlie 
protection  of  its  own  interests.  Having  failed  to  do  so,  it 
must  be  considered  as  having  acquiesced  in  the  right  of 
the  re-insured  company  to  make  the  defense,  and  in  the 
absence  of  all  testimony  of  any  fraud  or  want  of  good 
faith  on  the  part  of  the  re-insured  company  or  its  attor- 
neys in  making  its  defense,  it  must  be  held  bound  by  the 


RE-INSURANCE. 


283 


t; 


I 


result  of  the  suit. 
Mo.  503.     1878. 


Gantt  V.  American  Central  Ins.  Co.  68 


§  22.  During  the  term  for  which  defendant's  re-insur- 
ance policy  was  issued,  the  plaintiff  indorsed  upon  its  pol- 
icy to  the  original  assured  permission  to  carry  pressed 
hay,  and  received  therefor  an  additional  premium.  De- 
fendant knew  nothing  of  this  until  after  the  fire.  Defend- 
ant's policy  contained  a  condition  avoiding  it  in  case  of 
the  use  of  the  property  insured  for  the  storage  of  articles 
denominated  hazardous,  extra  hazardous,  or  specially  haz- 
ardous. In  the  ciitss  of  articles  denominated  extra  haz- 
ardous was  "hay  or  straw  pressed  in  bundles."  Held., 
that  defendant's  policy  was  avoided  by  the  carrying  of 
pressed  hay;  and  that  this  result  followed  whether  the 
policy  was  regarded  as  a  re-insurance  of  plaintiff's  risk, 
because  said  risk  was  altered  and  increased  by  the  per- 
mission so  given,  or  whether  the  policy  be  regarded  as  if  it 
were  an  insurance  issued  to  the  owners  of  the  barge  in- 
sured, because  then  the  condition  as  to  pressed  hay  was 
violated.  St.  Nicholas  Ins.  Co.  v.  Merchants'  Ins.  Co.  83 
N.  Y.  604.     1880. 

See  Consummation  of  Contract,  §  14.     Proofs  of  Loss,  13. 


ii;t1 


I  ■ 


REMOVAL  OF  CAUSES  TO  U.  S.  COURT. 


\H 


§  1.  The  appointment  of  an  agent  witbin  this  State 
upon  whom  process  can  be  served  in  compliance  with  the 
statute,  does  not  prevent  removal  of  a  cause  brought 
against  a  foreign  company  into  the  United  States  Court. 
Newhall  v.  Atlantic  Fire  Ins.  Co.  8  Phil.  Rep.  lOG.    1871. 

§  2.  The  right  to  remove  a  cause  into  the  U.  S.  Court 
is  an  absolute  one  secured  by  the  U.  S.  Constitution. 
Such  right  cannot  be  taken  away  by  an  act  of  a  State  leg- 
islature, nor  can  such  an  act  make  valid  an  agreement  to 
same  effect.  A  corporation  is  a  citizen  of  the  State  which 
creates  it.  Home  Ins.  Co.  v.  Morse,  20  Wallace,  445.  1874. 
s.  p.  Doyle  v.  Continental  Ins.  Co.  6  Ins.  L.  J.  177.  1876. 
U.  S.  Sup.  Ct. 

§  3.  A  corporation  created  within  the  sovei'eignty  of 
Great  Britain  and  under  the  laws  of  that  country,  are  pre- 
sumed to  be  citizens  or  subjects  of  that  kingdom,  within 
the  meaning  of  Act  of  Congress  providing  for  removal  of 
causes  into  U.  S.  Court.  Terry  v.  Imperial  Fire  Ins.  Co. 
4  Ins.  L.  J.  824.     1875.     U.  S.  Circuit,  Kans. 

§  4,  Petition  for  removal  into  U.  S.  Court  cannot  be 
filed  after  a  trial  in  the  State  Court.  Whittier  v.  Hart- 
ford Fire  Ins.  Co.  4  Ins.  L.  J.  622.  1875.  N.  II.  And 
see  note  on  power  of  State  Court  over  removal.  Id.  G22. 
s.  p.  Continental  Ins.  Co.  v.  Kasey,  27  Grat.  21<3.     1876. 

§  5.  Denial  of  State  Court  of  motion  to  remove  cause 
into  U.  S.  Court  does  not  excuse  defendant  from  filing  the 
necessary  papers  with  the  clerk  of  the  U.  S.  Court  as  pre- 
scribed by  the  Act  of  Congress,  1875.  The  right  of  de- 
fendant to  a  removal  is  not  dependent  on  the  question 
whether  the  State  Court  does  or  does  not  make  an  order 
for  the  removal.  Clippingcr  v.  Miss.  Valley  Ins.  Co.  5 
Ins.  L.  J.  310.     1876.     U.  S.  Circuit,  Ohio. 

§  6.  Cause  must  be  at  issue  before  it  can  be  said  that 
it  can  or  "could  be  tried"  under  Act  of  Congress,  1875, 


REMOVAL  OP  CAUSES  TO  U.  S.  COURT. 


285 


Co.  5 


providing  for  removal  of  cases  into  U.  S.  Court.  Michigan 
Central  R.  R  v.  Andes  Ins.  Co.  6  Ins.  L.  J.  246.  1877. 
U.  S.  Circuit,  Ohio. 

§  7.  Application  for  removal  of  case  into  U.  S.  Court 
is  in  time  if  made  before  pleadings  are  completed,  or  the 
next  term  following  their  completion.  Whitehouse  v.  Ins. 
Cos.  9  Ins.  L.  J.  781).     1880.     U.  S.  Circuit,  Pa. 

§  8.  A.  subsequent  judgment  of  State  Court  is  not 
rendered  absolutely  void  by  its  refusal  to  remove  case 
into  the  U.  S.  Court.  Until  it  is  reversed  or  set  aside  in 
a  proper  manner  by  an  appelhite  court  it  is  valid,  and  will 
be  enforced  in  a  collateral  action  brought  upon  it.  John- 
son V.  Brewers'  Fire  Ins.  Co.  10  Ins.  L.  J.  41 1.    1881.    Wis. 

§  0.  Plaintiff  society  and  defendant  were  Wisconsin 
corf)orations,  and  plaintiff  insurance  company  was  a  New 
York  corporation.  Action  was  brought  to  recover  amount 
of  damages  sustained  by  a  fire  caused  by  alleged  wrongful 
act  or  negligence  of  the  defendant.  Insurance  company 
paid  amount  of  its  policy  to  the  society,  and  both  joined 
in  action  to  recover  the  total  loss.  Ileld^  that  cause  could 
not  be  properly  removed  into  U.  S.  Court  under  Act  of 
187f).  First  Presbyterian  Society  and  Ins.  Co.  v.  Good- 
rich Transportation  Co.  10  Ins.  L.  J.  452.  1881.  U.  S. 
Circuit,  Wis. 

§  10.  The  Act  of  1875  providing  for  removal  into 
U.  S.  Court  requires  that  petition  shall  ])e  filed  before  or 
at  the  term  at  which  cause  could  be  first  tried.  Ileld^  that 
if  a  cause  is  not  in  a  situation  to  be  tried  at  a  given  term, 
excepting  by  consent  of  both  parties,  that  is  not  the  term 
at  which  it  can  be  tried,  unless  that  consent  has  been 
given.  Wiien,  thi'ough  want  of  a  prescril)ed  notice  of  trial, 
neither  party  can  move  the  case  for  trial  at  a  certain  term, 
it  cannot  bo  tried  at  such  term.  Wheeler  v.  Liv.,  Lond. 
<fe  G.  Ins.  Co.  10  Ins.  L.  J.  584.  1881.  U.  S.  Circuit, 
N.H. 

See  Foreign  Company,  §  21,  33,  20. 


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RENEWAL   OP   POLICY. 

§  1.  Where  property  was  transferred  to  plaintiff 
March  4,  1867,  renewal  of  an  existing  policy  in  name  of 
vendor,  made  March  2l8t,  and  the  policy  assigned  to 
former  April  15th,  to  which  the  company,  by  its  agent, 
with  knowledge  of  change  of  ownership,  consented  by  an 
indorsement  on  the  back,  Held,  that  the  renewal  continued 
policy  with  all  the  virtue  which  it  would  have  had  for 
any  purpose,  if  not  expired,  and  that  by  consenting  to  the 
assignment,  forfeiture,  if  any,  was  waived,  and  company 
agreed  to  become  answerable  to  the  assignee  to  extent  of 
his  interest,  and  retention  of  premium  received  for  the  re- 
newal was  good  consideration  for  such  an  agreement. 
Shearman  v. "Niagara  Fire  Ins.  Co.  46  N.  Y.  526.     1871. 

§  2.  A  promise  to  renew  by  company's  agent,  pre- 
mium being  neither  paid  nor  tendered,  cannot  be  regarded 
as  a  contract  of  renewal  or  insurance.  Croghan  v.  U  nder- 
writers'  Agency,  53  Ga  109.     1874. 

§  3.  Where  policy  requires  notice  of  "  any  change  in 
the  risk"  upon  renewal,  there  is  no  "change  of  risk" 
within  meaning  of  policy  unless  risk  is  increased  by 
change.    Parker  v.  Arctic  Fire  Ins.  Co.  59  N.  Y.  1.    1874. 

§  4.  When  loss  is  made  payable  to  a  third  party,  upon 
the  assured's  failing  to  pay  the  premium  for  a  renewal  he 
has  a  right  to  do  so,  and  it  seems  that  a  payment  by  any 
person  accepted  by  the  company  is  effective  to  renew  the 
policy.     Mechler  v.  Phoenix  Ins.  Co.  88  Wis.  665.     1875. 

§  5.  A  renewal  is  not  the  effecting  of  other  insurance, 
but  is  a  mere  contract  of  continuance  of  existing  insur- 
ance.    Pitney  v.  Glen's  Falls  Ins.  Co.  65  N.  Y.  6.     1875. 

§  6.  Application  for  renewal  with  statement  by  the 
agent  of  the  company  of  the  non-payment  of  the  premium 
and  the  issuance  by  the  company  of  the  renewal  receipt 
transmitted  to  his  agent  with  a  letter  informing  him  that 


RENEWAL  OF  POLICY. 


287 


it  held  him  responsible  for  the  premium,  constitutes  a  con- 
tract to  insure  as  before  for  one  year  obligatory  on  the 
company.    Planters'  Ins.  Co.  v.  Ray,  52  Miss.  325.     1876. 

§  7.  Policy  was  first  issued,  dated  Feb.  16th,  1872, 
for  one  year.  At  the  time  it  was  issued  there  was  a  mort- 
gage on  the  premises,  the  existence  of  which  was  not  com- 
municated to  the  company.  Subsequently  another  policy 
was  issued  to  the  same  parties  on  the  same  terms,  for  one 
year,  but  made  payable  in  case  of  loss  to  the  mortgagee. 
This  policy  was  issued  18th  of  October,  1872.  The  first 
policy  was  renewed  February  13th,  1873,  and  the  fire  oc- 
curred April  12th,  1873.  Suit  beingj  brought  on  the  first 
policy  and  renewal,  company  defending  upon  the  ground 
of  the  existence  of  the  mortgage,  Heldy  that  there  was  evi- 
dence sufficient  to  warrant  jury  in  finding  that  the  defend- 
ant had  knowledge  of  the  outstanding  mortgage  at  the 
time  of  the  renewal  of  the  policy  and  that  company  was 
liable  upon  the  ground  of  estoppel.  State  Ins.  Co.  v.  Todd, 
83  Pa.  272.     1877. 

§  8.  A  renewal,  although  amounting  to  a  new  con- 
tract, in  no  way  changes  the  terms  and  conditions  of  the 
policy  except  as  they  are  continued  in  force.  Aurora  Fire 
Ins.  to.  V.  Kranich,  3G  Mich.  289.     1877. 

§  9.  A  renewal  by  company  with  knowledge  of  facts 
revives  and  restores  policy,  although  by  reason  of  ex- 
istence of  such  facts  policy  might  have  been  declared  to 
be  void.  Robinson  v.  Pacific  Fire  Ins.  Co.  18  Hun,  395. 
1879. 

§  10.  An  agi'eement  to  renew  a  policy  implies  that 
the  terras  of  the  existing  policy  are  to  be  continued,  in  ab- 
sence of  evidence  that  a  change  was  intended.  Hay  v. 
Star  Fire  Ins.  Co.  77  K  Y.  235.     1879. 

§  1 1.  Assured  having  sworn  that  agent  of  company 
had  consented  to  removal  of  stock  insured,  a  memorandum 
made  by  former  upon  his  books  purporting  to  be  a  new 
insurance  upon  the  property  in  its  new  location  is  admissi- 
ble in  evidence,  and,  together,  will  sustain  finding  of  jury 


^f 


288 


RENEWAL  OF  POLICY. 


iililil 


i 


iJlli 


that  company  had  agreed  to  insure  in  new  location,  al- 
thougli  agent  sworo  that  the  entry  in  his  book  was  a  mere 
memorandum  of  a  proposed  insurance  that  was  never 
made.  Roger  Williams'  Ins.  Co.  v.  Carrington,  9  Ins.  L.J. 
577.     18S0.     Mich. 

§  12.  Policy  contained  condition  that  "this  insurance 
(the  risk  not  being  changed)  nay  be  continued  by  re- 
newal, tfec,  but  in  case  there  shall  have  been  any  change 
in  the  risk  not  made  known  to  the  company  by  tlie  as- 
sured, at  the  time  of  renewal,  this  policy  and  renewal  shall 
be  void."  Court  was  requested  to  charge  the  jury  "  that 
if  there  was  any  change  in  the  risk,  increasing  the  hazard, 
after  issue  of  policy  and  before  renewal  was  delivered, 
whether  known  or  not  known  to  the  assured,  and  not  made 
known  to  the  defendant  at  time  of  renewal,  policy  is  void," 
^vhich  was  refused.  I/eM,  such  refusal  erroi'.  Brueck  v. 
PhcBnix  Ins.  Co.  21  Ilun,  54-2.     1880. 

§  13.  There  is  no  legal  objection  to  a  renewal  of  a 
policy  being  issued  to  one  of  several  parties  originally  in- 
sured. Lockwood  v.  Middlesex  Mut.  Ins.  Co,  17  Conn. 
553.     1880. 

§  14.  A  judgment,  which  by  terms  of  the  policy 
avoided  it,  was  paid  prior  to  its  expiration.  A  certificate 
of  renewal  was  obtained  which  contained  the  following 
words:  "Provided,  always,  that  the  original  policy  is  in 
full  force."  Compnny  claimed  that  because  original  pol- 
icy was  void  at  its  date  on  account  of  the  judgment  then 
existing  although  subsequently  paid,  that  the  renewal  did 
not  take  effect.  Held,  untenable ;  that  by  proper  construc- 
tion it  was  not  intended  to  reach  a  case  where  at  time  of 
the  renewal  all  the  representations  contained  in  the  origi- 
nal application  are  true  and  no  cause  of  forfeiture  then  ex- 
isting.    Titus  V.  Glen's  Falls  Ins.  Co.  81  N.Y.  410.     1880. 

See  Agent,  §  22.  Alteration,  3.  Assignment,  10.  Estoppel,  5.  Increase 
of  Risk,  26.  Interest  in  Policy,  C,  25.  Mortgagor  nnd  Mortgagee,  20. 
Parol  Contract,  19.  Pleading  and  Practice,  U2.  Premium,  13.  Waiver,  2, 
21,  45.     Warranty  and  Representation,  00. 


I    11 


REPAIRS. 


§  1.  Policy  provided  that  "  the  working  of  carpen- 
ters, roofers,  tinsmiths,  gasfitters,  plumbers,  or  other  me^ 
chanics,  in  building,  altering,  or  repairing  the  premises, 
without  permission  indorsed,  should  vitiate  it."  Testi- 
mony was  that  accused  always  kept  a  crew  of  men  and  a 
carpenter  or  two  about  the  building  (an  ice  house)  the 
year  round,  and  was  constantly  making  repairs  and  keep- 
ing the  building  in  thorough  condition.  Held^  that  the 
clause  did  not  refer  to  the  casual  repairing  established  by 
testimony  but  as  prohibiting  such  hazardous  use  which 
arises  from  placing  building  in  possession  or  under  the 
control  of  workmen  for  rebuilding,  alteration,  or  repairs ; 
that  the  company  from  the  size,  structure,  and  use  of  the 
building  must  have  contemplated  the  necessity  for  such 
repairs  as  described  in  testimony.  Franklin  Fire  Ins.  Co. 
V.  Chicago  Ice  Co.  36  Md.  102.     1872. 

§  2.  Policy  provided  "  that  the  working  of  carpen- 
ters, roofers,  tinsmiths,  gasfitters,  plumbers,  or  other  me- 
chanics, in  building,  altering,  or  repairing  the  premises, 
named  in  the  policy,  will  vitiate  the  same,  except  in  dwel- 
ling-houses, where  five  days  are  allowed,  without  notice, 
in  any  one  year,  for  incidental  repairs."  Property  insured 
was  a  woollen  mill.  The  work  done  was  taking  out  of  an 
old  boiler  and  the  putting  in  a  new  one,  and  completed 
some  months  before  the  fire.  Held^  that  the  policy  was 
not  thereby  avoided;  that  the  condition  does  not  pro- 
hibit ordinary  repairs,  nor  such  as  become  indispensably 
necessary  to  remedy  defects  on  the  premises,  which  endan- 
ger safety  of  property,  and  which  occur  without  fault  of  as- 
sured, provided  it  appears  that  neither  the  repairs  made 
nor  the  work  done  increased  the  risk,  and  that  the  fii-e  is 
in  no  respect  attributable  to  either.  James  v.  Lycoming 
Ins.  Co.  4  CM.  272.     1874. 

§  3.    Assured  had  procured  a  permit  for  carpenters' 
and  mechanics'  risk  for  two  months,  during  which  exten- 
sive repairs  had  been  made,  which  work  had  ceased  at  ex- 
VoL.  II.— 19 


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BISK. 


pi  ration  of  limited  time.  Two  weeks  thereafter  carpenters 
commenced  work  by  putting  new  siding  on  outside  of 
building  in  place  of  the  old.  This  work  had  Drogressed 
three  days  when  fire  occurred.  Policy  permitted  five  days 
"  incidental  repairs  without  notice  or  indorsement."  Ilehl, 
that  the  work  done  was  covered  by  the  term  "  incidental 
repairs,"  and  there  was  no  forfeiture.  Rann  v.  Home  Ins. 
Co.  59  N.  Y.  387.     1874. 

Seo  Interest  in  Policy,  §  6.     Use  and  Occupation,  10. 


RISK. 

§  1.  A  loss  caused  by  a  freshet  is  not  within  the 
terms  of  an  insurance  against  loss  caused  by  fire  or  storm. 
Stover  V.  Ins.  Co.  3  Phil.  Rep.  38.     1858. 

§  2.  When  locality  is  specified  policy  cannot  be  ex- 
tended to  coveF  in  an  adjoining  building ;  nor  can  the  con- 
tract be  changed  on  the  ground  of  mistake,  company  sup- 
posing property  to  be  located  in  place  specified ;  nor  upon 
the  assumption  that  the  risk  would  have  been  taken  had 
'the  facts  been  known.  Severance  v.  Continental  Ins.  Co. 
5Biss.  156.     IbSO. 

§  3.  A  policy  issued  to  a  railroad  company  contained 
the  following :  "  provided  all  the  property  hereby  insured 
is  on  the  premises  owned  or  occupied  by  the  Providence 
and  Worcester  Railroad  Co ,  in  Mass.  and  R.  I."  Held, 
to  render  company  liable,  that  the  property  must  be  at  the 
time  of  the  loss  upon  the  premises  owned  or  occupied  by 
the  plaintifl:*  at  the  date  of  the  contract  of  insurance. 
Providence  &  Worcester  R.  R.  Co.  v.  Yonkers  Fire  Ins. 
Co.  10  R.  1.74.     1871. 

§  4.  A  horse  owned  by  a  farmer  and  killed  by  light- 
ning six  miles  away  from  place  specified  in  policy,  is  cov- 


BISK. 


291 


ered  by  the  insurance.     Mills  v.  Farmers'  Ins.  Co.  37  Iowa, 
400.     1873. 

§  5.  The  terms  "  contained  in  "  a  particular  building 
limit  the  risk  to  the  time  the  goods  remained  in  the  same 
building  in  which  they  were  when  policy  was  issued. 
Maryland  Fire  Ins.  Co.  v.  Gusdorf,  43  Md.  506.     1875. 

^  G.  Under  an  open  policy  express  assent  of  com- 
pany to  the  several  risks  is  not  requisite  where  it  is  shown 
to  be  waived  by  usual  course  of  conduct  in  regard  to  pre- 
vious shipments  of  goods  covered  by  the  same  policy. 
When  assured  gives  notice  on  a  particular  occasion,  as  he 
had  done  on  all  previous  occasions,  and  the  company  as- 
sents by  its  silence  as  it  had  always  theretofore  done,  the 
latter  is  bound.  Edwards  v.  Mississippi  Valley  Ins.  Co. 
1  Mo.  App.  102.     1876. 

§  7.  Policy  insured  the  steamship  "  Indian  Empire," 
lying  in  the  Victoria  Docks,  London,  with  liberty  to  go 
into  dry-dock.  The  vessel  was  taken  to  a  dry-dock  and 
after  being  repaired  was  towed  down  the  river,  and  in- 
stead of  being  put  into  the  Victoria  Docks  was  moored 
outside  in  the  river  some  600  or  700  yards  distant,  for 
purpose  of  having  paddle  wheels  refitted.  While  here  the 
vessel  was  destroyed  by  fire.  Held,  not  covered  by  the 
policy.  Pearson  v.  Commercial  Union  Ins.  Co.  L.  R.  1 
App.  Cas.  498.     1876. 

§  8.  Property  insured  was  a  phaeton,  and  was  de- 
stroyed while  in  a  shop,  where  it  had  been  left  for  repair. 
It  was  described  in  policy  as  contained  in  a  barn  located 
on  assured's  premises.  Ileld,  company  liable  foi*  the  loss; 
that  while  the  words  "  contained  in  barn  "  are  words  re- 
lating to  the  risk  and  constitute  a  warranty  that  carriage 
would  continue  to  be  contained  in  the  barn,  they  mean 
only  that  the  barn  described  was  its  place  of  deposit  when 
not  absent  therefrom  for  temporary  purposes  incident  to 
ordinary  use  and  enjoyment  of  the  property.  Presump- 
tion is  that  policy  was  issued  with  reference  to  sucii  use. 
McCluer  v.  Girard  Ins.  Co.  43  Iowa,  349.  1876.  s.  p. 
Wearing  Apparel.  Lonqueville  v.  West.  Ass.  Co.  51  Id. 
553. 


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RISK. 


§  9.  Policy  contained  clause  excepting  loss  occasioned 
by  means  of  invasion  of  military  or  usurped  power.  Prop- 
erty insured  was  situated  in  a  place  held  by  troops  of  the 
U.  S.  Being  attacked  by  rebel  forces,  during  tlie  progress 
of  the  battle,  the  officer  in  command  of  U.  S.  forces 
directed  that  a  certain  building  should  be  fired,  to  pre- 
vent its  falling  into  the  hands  of  the  enemy,  which  was 
done.  The  fire  thus  started,  after  destroying  several  inter- 
mediate luildings,  burnt  the  one  insured.  Held,  that  the 
invasion  was  the  cause  of  the  loss,  and  that  it  was  ex- 
cepted by  terms  of  the  policy.  Ins.  Co.  v.  Boon,  5  Otto, 
117.     1877.     Kev'g  12  Blatch.  24.     1874. 

§  10.  Policy  insured  barge  while  "  running  on  the 
Hudson  and  East  rivers."  Ileld,  that  risk  was  not  re- 
stricted to  barge  while  in  motion.  That  the  term  "  run- 
ning" included  all  that  would  ordinarily  be  comprehended 
by  the  business  of  a  vessel  in  active  employment.  Hence 
barge  was  also  insured  while  lying  at  wharf  for  purpose 
of  receiving  and  discharging  its  cargo.  St.  Nicholas  Ins. 
Co.  V.  Merchants'  Ins.  Co.  U  Hun,  108.     1877. 

§  11.  Policy  covering  agricultural  machines  in  a  speci- 
fied place  is  not  rendered  void  by  their  temporary  removal 
notwithstanding  clause  that  insurance  should  cease  in  case 
of  removal.  The  proper  construction  is  that  the  insur- 
ance ceat,:;s  while  they  are  removed,  but  re-attaches  on 
their  return.  German  v,  Hand-in-IIand  Ins.  Co.  Irish  Hep. 
11  C.  L.  224.     1877. 

§  12.  Statement  in  policy  that  a  threshing  machine  is 
"  stored  in  barn,"  etc.,  is  a  mere  matter  of  description 
operating  simply  to  locate  the  machine.  It  does  not 
amount  to  a  promissory  stipulation  on  the  part  of  the  in- 
sured or  a  condition  of  insurance  on  part  of  the  insurer 
that  this  location  should  remain  unchanged,  or  if  changed 
that  while  changed  the  insurance  should  cease  or  be  sus- 
pended. Machine  was  destroyed  while  standing  in  the 
field  where  it  had  been  in  use  continuously.  Everette  v. 
Continental  Ins.  Co.  21  Minn.  70.  1874.  Ilolbrook  v. 
St.  Paul  Ins.  Co.  25  Minn.  229.     1878. 


RISE. 


293 


s insurer 


§  13.  Policies  of  insurance,  unless  the  language  ex- 
cludes the  presumption,  must  be  presumed  to  be  made 
with  reference  to  the  character  of  the  property  insured 
and  the  owner's  use  of  it  in  the  ordinary  way,  and  for  the 
purposes  for  which  such  property  is  ordinarily  held  and 
used.  The  company  assumes  all  the  risk  from  fire  inci- 
dent to  such  use  and  not  merely  that  incident  to  the  prop- 
erty during  a  part  of  the  time  or  while  it  may  be  kept  in 
a  particular  place.  In  this  case  the  mules  insured  were 
used  in  cultivating  a  particular  farm.  Held^  that  the  pol- 
icy covered  them  while  so  used  and  notwithstanding  the 
risk  might  be  at  times  greater  in  such  use  than  while  they 
might  be  stabled  in  the  barn ;  that  the  condition  against 
increased  risk  refers  to  an  increase  beyond  that  which  the 
company  assumes,  to  wit :  that  ordinarily  incident  to  the 
use  of  mules  in  the  cultivation  of  the  farm.  Holbrook  v. 
St.  Paul  Ins.  Co.  25  Minn.  229.     1878. 

§  14.  Insurance  was  upon  a  vessel  against  loss  or 
damage  by  fire.  A  fire  being  discovered  in  order  to  save 
the  vessel  it  was  found  necessary  to  submerge  it.  Assured 
claimed  to  be  entitled  to  recover  amount  damage  to  cargo 
under  principle  of  general  average  in  marine  insurance. 
Held^  not  tenable ;  that  defendant  was  liable  only  for  dam- 
age to  the  vessel  itself.  Merchants'  and  Miners'  Transp. 
Co.  V.  Assoc.  Firemen's  Ins.  Co.  53  Md.  448.     1879. 

§  1 5.  In  case  of  an  insurance  upon  a  boat  lying  in 
winter  quarters,  jury  may  properly  find  that  the  use  of  a 
stove  is  reasonably  included  in  the  term  "  refitting  risk  in 
the  spring,"  which  risk  was  covered  by  the  terms  of  the 
policy.  Lyon  v.  Stadacona  Ins.  Co.  44  Up.  Can.  Q.  B. 
472.     1879. 

§  16.  A  vessel  which  has  been  intentionally  run  upon 
the  beach,  and  holes  opened  permitting  the  water  to  run 
in  and  out  of  her  hull  with  the  tide ;  and  fastened  by  a 
piece  oi  railroad  iron  at  the  bow  and  an  anchor  at  the 
stern,  in  which  situation  she  had  been  for  several  months 
previous  to  the  fire,  cannot  be  considered  as  "  lying  at  an- 
chor." Reid  V.  Lancaster  Fire  Ins.  Co.  19  Ilun,  284. 
1879. 


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294 


BISK. 


§  17.  Company  was  exempted  from  liability  in  case 
of  any  loss  by  fire  which  might  happen  by  means  of  any 
invasion,  insurrection,  riot  or  civil  commotion,  or  any  mil- 
itary or  usurped  power.  The  insured  property  and  large 
amounts  of  other  propertjr  -.vas  destroyed  by  fire  started 
by  and  under  the  orders  of  officers  of  the  United  States 
government.  At  that  time  the  ordinance  of  secession  had 
passed  the  Virginia  legislature,  but  had  not  been  submit- 
ted to  the  people  for  ratification.  Held^  that  the  ordi- 
nance of  secession  being  then  inoperative,  Virginia  could 
not  be  regarded  as  a  foreign  state  or  country  so  as  to  make 
the  act  of  the  United  States  troops  an  invasion  on  the 
part  of  the  United  States,  and  that  hence  the  loss  was  not 
within  the  exception.  Portsmouth  Ins.  Co.  v.  Reynolds, 
32  Grat.  613.     1880. 

§  18.  When  the  insurance  is  upon  a  stock  of  goods, 
their  removal  without  consent,  from  their  place  of  deposit 
specified  in  the  policy,  terminates  the  insurance.  Harris 
v.  Royal  Canadian  Ins.  Co.  53  Iowa,  236.     1 880. 

§  19.  Evidence  showed  that  eight  or  ten  men  ex- 
changed shots  with  the  watchmen,  set  fire  to  the  coal 
breaker,  and  drove  off  the  watchmen.  Held^  to  bo  a 
"riot"  within  meaning  of  clause  in  policy  exempting 
company  from  liability  in  such  case.  Lycoming  Fire  Ins. 
Co.  V.  Schwenk,  10  Ins.  L.  J.  13.     1880.     Pa. 

§  20.  Policy  on  boat  contained  the  following:  "Also 
warranted  to  be  securely  moored  in  a  safe  phice,  satisfac- 
tory to  this  company,  between  noon  of  December  10  and 
noon  April  Ist  following,  and  the  company  to  be  duly 
notified  of  the  time  and  place  of  laying  up.  Privilege  to 
lighter  in  New  York  harbor  during  the  winter."  The 
boat  was  not  used  for  lightering  during  the  winter,  but 
was  laid  up  at  a  place  about  twenty  miles  fiom  New  York, 
where  she  was  destroyed  by  fire.  No  notice  of  laying  up 
was  given  to  the  company.  It  was  contended  that  the 
privilege  to  "lighter  in  New  York  harbor  during  the  win- 
ter" wholly  dispensed  with  the  warranty  and  justified 
plaintifl:'  in  omitting  to  notifly  company  of  time  and  place 
of  mooring  the  boat.     Ileld^  that  such  contention  could 


r  .'I 


RISE. 


295 


y  in  case 

s  of  any 

any  mil- 

nd  large 

J  started 

d  States 

ision  had 

submit- 

he  ordi- 

ia  could 

to  make 

on  the 

was  not 

-eynolds, 

f  goods, 

deposit 

Harris 


neu  ex- 
the  coal 
o  be  a 
emptini; 
ire  Ins. 


:  "Also 
satist'ac- 
10  and 
)e  duly 
ilege  to 
"     The 
er,  but 
V  York, 
ang  up 
Jat  the 
he  win- 
ustified 
tl  place 
I  could 


not  be  maintained.      Devens  v.  Mechanics'  and  Traders' 
Ins.  Co.  83  N.  Y.  168.     1880. 

S  21.  Policy  insured  "frame,  shingle  roof,  hop  house, 
tvhm  drying  hops^''  and  there  was  the  usual  clause  to  effect 
that  company  agreed  to  make  good  to  the  assured  all  loss 
or  damage  which  should  happen  "  by  lire  to  the  property 
so  specified"  from  the  15th  day  of  August  to  the  15th 
day  of  October,  1875.  Fire  occurred  before  term  expired, 
but  assured  had  ceased  drying  hops.  Held,  that  defend- 
ant was  not  liable,  and  that  it  was  not  error  to  dismiss 
plaintiff's  complaint.  Laugworthy  v.  Oswego  Ins.  Co.  10 
Ins.  L.  J.  546.     1881.     N.  Y. 

§  22.  When  all  the  elements  of  a  sufficient  parol  con- 
tract of  insurance,  by  both  a  fire  and  marine  insurance 
company,  are  shown  to  exist,  excepting  the  risk,  it  may  be 
inferred  from  the  situation  and  circumstances  of  the  prop- 
erty that  the  insurance  was  against  fire.  Baile  v.  St.  Jo- 
seph Fire  and  Marine  Ins.  Co.  10  Ins.  L.  J.  657.  1881. 
Mo. 

§  23.  A  boat  insured  as  "running  on  the  Hudson 
river"  in  August  and  September,  1876,  ran  very,  little  if 
at  all.  In  October,  about  the  12th,  she  began  to  run  in 
place  of  another  boat  taken  off  for  repairs,  and  ran  for  a 
few  days,  and  then  was  taken  off.  While  tied  up  and  not 
in  actual  use  she  was  ready  for  service  with  water  in  her 
boiler  and  wood  in  her  furnace  ready  to  run.  Held,  that 
the  boat,  within  the  meaning  of  the  policy,  was  running 
on  the  Hudson  river,  "  and  that  no  defense  was  available 
on  the  ground  of  increase  of  risk  when  she  was  tied  up, 
there  being  no  evidence  to  that  effect."  Mark  v.  National 
Fire  Ins.  Co.  24  Hun,  565.     1881. 

§  24.  Policy  insured  household  furniture,  "  All  con- 
tained in  house  —  McMillan  street,  Providence,  R.  I." 
At  the  time  of  the  fire  the  articles  had  been  removed  and 
were  in  another  house,  and  company  had  never  received 
any  notice  of  such  removal,  lleld,  that  the  above  words 
in  quotation  marks  Avere  merely  a  description  of  the  prop- 
erty insured,   and  were  not  a  warranty  that  the  goods 


I 

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ii  § 


296 


STORING  OR  KEEPING. 


should  remain  in  the  house,  and  that  the  liability  of  the 
compiany  was  limited  to  a  loss  from  a  fire  at  that  house, 
and  that  if  company  wished  to  so  limit  its  risk,  the  policy 
should  have  provided  that  goods  should  not  be  removed 
without  their  consent.  Lyons  V.Washington  Ins.  Co.  12 
Kep.  414.     1881.     R.  I. 

See  Assignment,  §  14.  Buniing  by  Design,  4.  Collision,  1,  3.  Estoppel, 
5.15.  Evidence,  63.  Explosion,  2.  Increase  of  Risk,  3,  27.  Renewal,  11. 
Storing  and  Keeping,  3,  14,  15.  Usage  or  Custom,  6.  Use  and  Occupation, 
7,13.  Vacant  or  Unoccupied,  4.  Warranty  and  Representation,  13,  13,  43. 
What  Property  Covered,  4,  16,  21. 


STORING  OR   KEEPING. 

§  1.  In  an  action  upon  a  policy  which  expressly  de- 
clares that  only  goods  not  hazardous  and  hazardous  are 
insured,  and  that  the  keeping  of  extra  hazardous  or  spec- 
ially hazardous  goods  on  the  premises  shall  avoid  the  pol- 
icy, Held^  that  evidence  offered  by  assured  that  application 
was  for  a  policy  upon  stock  "  such  as  is  usually  kept  in 
-country  stores,"  in  response  to  which  policy  in  suit  was 
sent,  was  properly  rejected,  because,  if  established,  it  could 
not  have  sustained  a  finding  by  jury  that  policy  sent  was 
intended  as  a  compliance  with  the  request.  Pindar  v. 
Resolute  Fire  Ins.  Co.  47  N.  Y.  114.     1871. 

§  2.  Policy  contained  following  provision  :  "  Oi*  if 
gunpowder,  phosphorus,  saltpetre,  naphtha,  benzine,  ben- 
zine varnish,  benzole,  petroleum,  or  crude  earth  oils,  are 
kept  on  the  premises,  or  if  camphene,  burning  fluid,  re- 
fined coal  or  earth  oils,  are  kept  for  sale,  stored,  or  used 
on  the  premises,  in  quantities  exceeding  one  V)arrel  at  any 
one  time,"  without  written  consent  indorsed,  it  should  be 
void.  Held^  that  the  words,  "  in  quantities  exceeding  one 
Ijarrel,"  were  applicable  alike  to  all  the  articles  enumer- 
ated in  above  provision.  Phoenix  Ins.  Co.  v.  Slaughter,  I 
Ins.  L.  J.  666.     1871.     U.  S.  Sup.  Court. 


of  the 
house, 
policy 
einoved 
Co.  12 


STORING  OR  KEEPING. 


297 


§  3.  Where  policy  was  upon  "  stock  of  fancy  goods, 
toys,  and  other  articles  in  his  (assured's)  line  of  business, 
as  a  German  jobber  and  importer,  with  privilege  to  keep 
fire-crackers,"  and  fireworks,  belonging  to  a  prohibited 
class,  were  kept  by  which  the  fire  and  loss  were  caused. 
Held,  that  the  evidence  tending  to  show  that  the  keeping 
of  fireworks  was  in  line  of  as8ured''s  business,  company 
was  liable,  and  the  verdict  conclusive ;  and  it  was  not  er- 
ror for  court  to  refuse  to  charge  that  jury  might  consider 
rate  of  premium  paid  as  bearing  upon  question  whether 
fireworks  were  intended  to  be  insured  or  not.  Steinbach 
V.  La  Fayette  Ins.  Co.  54  N.  Y.  90.     1873. 

§  4.  The  fact  that  a  condition  against  "  keeping  and 
storing  "  does  not  prohibit  a  certain  article,  does  not  pre- 
vent its  coming  within  the  operation  of  a  clause  against 
"  increase  of  risk."  The  latter  is  a  question  of  fact,  and 
if  found  afl&rmatively  renders  policy  void.  Williams  v. 
People's  Fire  Ins.  Co.  57  N.  Y.  274.     1874. 

§  5.  When  a  policy  is  issued  upon  a  stock  of  goods 
in  a  specified  business  the  underwriter  is  presumed  to 
know  what  goods  are  usually  kept  by  those  engaged  in 
that  business.  Hall  v.  Ins.  Co.  of  N.  A.  58  N.  Y.  294. 
1874. 

§  6.  Where  policy  covered  "  materials  used  in  their 
(assureds')  business, '  Ileld^  the  use  of  such  materials  as 
were  necessarily  and  ordinarily  used  in  the  business  was 
autiiorized,  althougli  by  printed  clauses  of  policy  the 
keeping  or  use  of  such  materials  upon  the  premises  was 
proliibited.  And  this  is  not  affected  by  the  fact  that  other 
materials  to  accomplish  same  purpose  might  be  used. 
Hall  V.  Ins.  Co.  of  N.  A.  58  N.  Y.  292.     1874. 

§  7.  Policy  contained  provision  that  petroleum,  rock 
and  earth  oils,  tfec,  should  not  be  stored  or  used  without 
written  permission,  and  also  that  '•  camphene,  spirit  gas 
or  burning  fluid,  phosgene  or  any  othei  inflammable 
liquid  when  used  in  manufactoi-ies  as  a  light,"  required 

f)ermi8sion  by  indorsement.     Property  was  paper  mill, 
ighted  by  kerosene,  and  at  time  of  fire  there  were  in  mill 


■  W- 1 


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298 


STORING  OR  KEEPING. 


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liill! 


about  forty  gallons,  a  reasonable  quantity  for  use  for  which 
it  was  provided,  lleld^  that  the  kerosene  was  not "  stored  " 
within  meaning  of  policy ;  that  it  came  properly  within 
the  term  "  rock  or  earth  oil,"  but  that  as  policy  must  have 
been  made  in  reference  to  well-known  fact  that  kerosene 
is  reasonably  safe  and  in  ordinary  and  general  use  for 
liuhting  purposes,  and  was  not  specially  prohibited,  con- 
/  ig  the  clauses  together,  kerosene  for  lighting  was  not 
jr  hi  /i ted,  it  being  proved  that  it  was  not  properly  classi- 
tied  iis  an  "inflammable  liquid."  Buchanan  v.  Exchange 
Fire  Ins  Co.  61  N.  Y.  2G.     1874. 

§  8.  I*lr.in^.ff  kept  crude  petroleum  in  a  jug  upon  a 
shelf  in  his  room,  for  use  as  a  medicine,  and  several  quarts 
were  in  building  at  time  of  fire.  Policy  contained  usual 
provisions  against  "  storing  and  keeping "  such  articles. 
Held^  the  words  "  storing  or  keeping "  were  obviously 
aimed  at  storing  or  keeping  in  a  mercantile  sense,  in  con- 
siderable quantities,  with  a  view  to  commercial  traffic. 
They  could  not  be  construed  to  forbid  the  use  of  the 
petroleum  as  a  medicine.  Williams  v.  Firemen's  Fund 
Ins.  Co.  54  N.  Y.  569.     1874. 

§  9.  Policy  contained  usual  clause  against  "storing  or 
keeping"  of  certain  prohibited  articles.  Pleadings  pre- 
sented no  issue  upon  it,  but  set  up  defense  of  fraud  in 
origin  of  fire  and  in  the  proofs  of  loss.  Evidence  was 
given  without  objection  establishing  presence  on  premises 
of  a  prohibited  article.  Motion  for  nonsuit  upon  ground 
that  under  above  clause  policy  was  void,  which  was  denied. 
Held^  evidence  proper  under  issue  as  to  fraud  and  its  re- 
ception without  olyection  did  not  waive  right  to  object  to 
the  consideration  of  new  issue  so  presented.  Williams  v. 
Mechanics'  and  Traders'  Ins.  Co.  54  N.  Y.  577.     1874. 

§  10.  Keeping  a  small  quantity  of  saltpetre  for  pur- 
pose of  preserving  meat,  tfec,  is  not  a  "storing"  witliin 
meaning  of  the  policy.  Bayly  v.  Lancashire  Ins.  Co.  4 
Ins.  L.  J.  503.     1875.     U.  S.  Circuit,  La. 

§  11.  To  avoid  policy  on  ground  of  storing  or  selling 
saltpetre  there  must  be  such  a  qiiantitij  as  in  the  fair  con- 


STORING  OR  KEEPING. 


299 


struction  of  the  policy  and  interest  of  the  parties  would 
fall  within  the  prohibition  and  amount  to  a  substantial 
violation.  It  cannot  be  said  that  the  storing  of  saltpetre 
in  any  quantity,  however  minute,  voids  the  insurance. 
The  question  is  proper  to  be  submitted  to  the  jury  with 
such  instruction,  and  their  verdict  is  conclusive.  Bayly  v. 
Lond.  and  Lane.  Ins.  Co.  4  Ins.  L.  J.  503.  1875.  U.  S. 
Circuit,  La. 

§  12.  When  policy  provides  that  no  gasoline  shall  be 
stored  on  the  premises,  the  word  premises  must  be  con- 
strued to  mean  the  building  and  does  not  prevent  the  as- 
sured from  storing  gasoline  on  his  lot  outside  of  the  build- 
ing in  reasonable  quantities  for  use  therein.  Northwestern 
Mutual  Life  Ins.  Co.  v.  Gcrmania  Fire  Ins.  Co.  40  Wis. 
446.     1876. 

§  13.  Policy  provided  that  if  petroleum  should  be 
kept  or  had  upon  the  premises,  that  it  should  be  void. 
The  insurance  was  upon  a  stock  of  merchandise,  and  at 
the  time  of  the  fire  assured  kept  a  barrel  of  petroleum  in 
stock  for  sale.  Held^  that  petroleum,  even  although 
usually  kept  as  a  part  of  the  usual  stock,  it  could  not  be 
included  in  the  word  "  merchandise,"  and  that  the  insur- 
ance was  avoided ;  and  held  also,  that  the  force  of  the 
condition  could  not  be  affected  by  knowledge  of  company's 
agent.  Birmingham  Fire  Ins.  Co.  v.  Kroegher,  83  Pa.  64. 
1876. 

§  14.  When  keeping  of  gunpowder  is  prohibited 
without  written  consent,  it  is  not  covered  or  permitted  by 
the  phrase  "  stock  usually  kept  for  sale  in  a  country 
store."     Cobb  v.  Ins.  Co.  N.  A.  17  Kans.  492.     1877. 

§  15.  Policy  covered  "drugs  and  medicines."  Salt- 
petre was  on  hand  as  part  of  the  stock  of  drugs  at  the 
time  policy  issued.  It  was  usually  kept  in  drug  stores 
and  was  always  on  hand  in  small  quantities  for  retail  as  a 
drug.  Held,  that  the  saltpetre  was  insured  as  part  of  the 
stock,  and  although  specially  prohibited  in  the  printed 
terms,  it  did  not  avoid  the  policy.  Collius  v.  Ins.  Co.  79 
N.  C.  280.     1878. 


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300 


STORING  OR  KEEPING. 


§  16.  Policy  provided  that  if  the  assured  should 
"  keep  or  use  camphene,  spirit  gas,  or  any  burning  fluid  or 
chemical  oils,"  without  written  permission  it  should  be 
void.  Assured  used  a  liquid  called  Danforth's  burning 
fluid,  which  was  supplied  from  a  neighboring  store,  and 
kept  in  a  ten-gallon  can,  but  never  more  than  five  gallons 
were  purchased  at  a  time.  It  was  used  only  for  lighting 
purposes.  There  was  evidence  that  Danforth's  fluid  was 
simply  a  form  of  coal  oil,  more  highly  refined  and  safer  as 
regards  explosive  qualities.  Policy  also  prohibited  the 
keeping  of  petroleum,  naphtha,  or  gasoline.  Held^  that 
plaintiff  was  not  prohibited  from  keeping  and  using  such 
fluid  for  lighting  purposes,  and  that  there  could  be  no 
violation  of  the  terms  of  the  policy  without  proof  that 
the  fluid  was  in  its  nature  like  camphene  or  spirit  gas. 
Wheeler  v.  American  Cent.  Ins.  Co.  6  Mo.  App.  235. 
1878. 

§  17.  When  policy  forbids  the  keeping  of  an  explo- 
sive, the  question  as  to  whether  alcohol  is  an  explosive 
must  be  proved  as  a  matter  of  fact ;  it  cannot  be  assumed 
as  a  matter  of  law.  Willis  v.  Germania  Ins.  Co.  79  N.  C. 
285.     1878. 

§  18.  When  assured  is  authorized  to  keep  kerosene, 
standard  quality,  110  degrees,  the  burden  of  proof  is  upon 
the  company  to  show  that  it  is  not  of  that  quality.  Wil- 
lis V.  Germania  Ins.  Co.  79  N.  C.  285.     1878. 

§  19.  Prohibition  against  keeping  and  storing  of  oils 
cannot  be  construed  to  prohibit  ordinary  use  of  kerosene 
for  lighting  purposes.  Bennett  v.  N.  B.  tfe  M.  Ins.  Co.  8 
Daly,  471.     1879.     Affi'd,  81  N.  Y.  273. 

§  20.  Policy  covered  stock  of  "  general  mere  handise 
all  kinds  usually  kept  in  a  country  retail  store."  Policy 
specified  that  the  insurance  was  against  loss  or  damage  as 
may  occur  by  fire  except  as  hereinafter  provided.  There 
was  a  subsequent  condition  t'jat  company  should  not  be 
held  liable,  unless  by  special  consent  in  writing,  in 
case  benzine  or  turpentine  with  other  prohibited  articles 
were  kept  or  used.     Held^  that  the  fact  tltnt  tui'pentine 


STORING  OR  KEEPING. 


301 


should 
fluid  or 
ould  be 
burning 
ore,  and 
gallons 
lighting 
uid  was 
safer  as 
ted  the 
M  that 
ng  such 
be  no 
>of  that 
irit  gas. 
)p.   235. 

1  explo- 
cplosive 
issunied 

f9  N.  C. 


erosene, 
is  upon 
.     Wil. 


of  oils 
erosene 
3.  Co.  8 

landise 
Policy 

lage  as 
There 

not  be 

»g,  iu 
irticles 
>entine 


P 
¥ 


and  benzine  were  usually  kept  as  part  of  the  stock  of 
country  stores  would  not  prevent  the  last  condition  being 
operative,  and  if  benzine  and  turpentine  were  kept  and 
used,  even  altliougb  a  part  o^  the  stock  of  country  stores, 
company  is  not  liable.  Lancaster  Fire  Ins.  Co.  v.  Lenbeim, 
89  Pa.  497.     1879. 

§  21.  Policy  prohibited  the  keeping  or  having  upon 
the  premises  benzine,  and  the  keeping,  having  or  using, 
camphene,  spirit  gas  or  any  burning  fluid  or  chemical  oils. 
A  can  of  benzine  was  procured  by  the  assured  and  placed 
and  kept  in  a  warehouse  about  fifty  feet  distant,  from 
which  it  was  brought  on  the  premises  and  used  for  clean- 
ing the  machinery.  Held,  that  the  assured  did  not  keep  , 
or  have  benzene  on  the  premises  within  meaning  of  the 
policy,  and  that  its  use  on  the  premises  did  not  avoid  the 
policy,  because  the  use  of  benzine  not  being  prohibited  iu 
terms,  if  prohibited  at  all,  it  must  be  because  it  is  included 
within  burning  fluid  or  chemical  oils,  but  that  these  words 
must  be  construed  with  what  precedes  them  in  the  condi- 
tion, and  that  under  such  construction  the  words  burning 
fluid  or  chemical  oils  must  mean  only  such  fluids  or  oils 
as  are  in  their  nature  like  camphene  or  spirit  gas,  and  that 
this  was  not  a  matter  of  which  court  would  take  judicial 
notice,  but  that  it  was  a  fact  to  be  determined  by  the  jury. 
Hears  v.  Humboldt  Ins.  Co.  9  Ins.  L.  J.  139.     1879.     Pa. 

§  22.  Policy  contained  condition  that  "  if  camphene, 
burning  fluid,  or  refined  coal  or  earth  oils  are  kept  for 
sale,  stored  or  used  on  the  premises  without  written  con- 
sent, it  should  be  void."  Assured  at  time  of  issue  of  policy 
and  thereafter  used  kerosene  for  lighting  without  consent, 
which  fact  was  known  to  defendant's  agent  when  policy 
was  issued.  Held,  that  while  kerosene  was  included  in 
the  terms  "  Refined  coal  or  earth  oil,"  company  was 
estopped  by  knowledge  of  its  agent  from  setting  up  a 
breach  of  the  condition.  Bennett  v.  N.  B.  and  M.  Ins.  Co. 
81  N.  Y.  273.     1880. 

§  23.  When  policy  covers  "stock  of  drugs  and  medi- 
cines and  raetchandise  usually  kept  in  country  stores,"  if 
benzine  is  a  drug  or  is  usually  kept  in  country  stores,  it 


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302 


SUBROGATION. 


is  covered  by  the  insurance,  notwithstanding  a  printed 
prohibition  against  the  storing  and  keeping  of  benzine. 
The  question  as  to  whether  benzine  is  a  drug  and  whether 
it  is  usually  kept  in  a  country  store  should  be  submitted 
to  the  jury  if  there  is  any  evidence  legitimately  in  the  case 
on  either  question.  Carrigan  v.  Lycoming  Ins.  Co.  10  lus. 
L.  J.  GOG.     1881.     Vt. 

See  Estoppel,  §  11,  34,  37.  Evidence,  16,  71,  89.  Increase  of  Risk,  8,  37. 
Illegality  of  Contract,  4.  Lighting,  2,  6.  Use  and  Occupation,  6,  7,  13. 
Warranty  and  Representation,  108. 


SUBROGATION. 


§  1.  Where  property  is  negligently  lost  or  destroyed 
in  transportation,  and  company  pays  the  loss  to  the  as- 
sured, it  can  recover  the  sum  so  paid  from  the  party  re- 
sponsible for  the  loss,  although  it  was  not  legally  bound 
to  indemnify  the  assured.  Ins.  Co.  v.  C.  D.  Jr.  1  Wood. 
72.     1870. 

§  2.  Where,  under  an  executory  contract  of  sale,  the 
vendee  agrees  to  pay  the  expense  of  insuring,  and  does  so, 
the  insurance  exists  for  his  benefit,  and  company  has  no 
right  of  subrogation.  Wood  v.  North  W.^stern  Ins.  Co. 
46N.Y.  421.     1871. 

§  3.  On  payment  of  loss,  company  cannot  sue  wrong- 
doer who  occasioned  it  in  its  own  name,  either  at  common 
law  or  under  statute  of  Missouri.  Suit,  although  for  use 
of  insurer,  must  be  in  name  of  person  whose  property  was 
destroyed,  ^tna  Ins.  Co.  v.  Ilannibal  &  St.  J.  R.  R.  3 
Dill.  1.     1874. 

§  4.  There  can  be  no  subrogation  when  policy  insures 
owner,  loss,  if  any,  payable  to  a  mortgagee.  Cone  v.  Ni- 
agara Fire  Ins.  Co.  GO  N.  Y.  619.     1875. 


SUBROGATION. 


303 


§  5.  Insurance  company,  having  paid  a  loss  caused  by 
sparks  from  an  engine,  it  is  subrogated  to  rights  of  assured 
as  against  the  railroad  company,  and  may  bring  suit  to  re- 
cover the  amount  paid.  Such  an  action  cannot  be  claimed 
to  be  local  as  being  one  to  recover  damages  for  injuries  to 
real  estate;  it  is  personal  and  transitory,  its  gravamen 
negligence,  and  is  hence  maintainable  in  another  State 
than  the  one  where  fire  occurred.  Home  Ins.  Co.  v.  Penn. 
K.  R.  Co.  11  Hun,  182.     1877. 

^  G.  Building  insured  was  burned  through  negligence 
of  railroad  company.  Assi'.red  settled  with  it  for  a  sum 
less  than  the  actual  damage  and  gave  a  release,  in  which 
it  was  stated :  "  This  settlement  is  not  intended  to  dis- 
charge the  Connecticut  Fire  Insurance  Company  from  any 
claim,  tfec."  It  was  insisted  that  as  the  assured  had  set- 
tled and  released  all  his  claim  for  damages,  the  insurance 
company  could  take  nothing  by  subrogation  or  assignment. 
Held,  that  as  the  insurance  company  could  not  have  inter- 
posed tiie  release  as  a  defense  in  an  action  by  the  assured 
upon  the  policy,  and  the  assured  having  released  only 
such  damages  as  he  could  without  interfering  with  his 
claim  against  the  insurance  company,  the  legal  conse- 
quence— subrogation — must  be  regarded  as  part  of  the 
exception.  That  insurance  company  acquired  the  claim 
by  subrogation,  and  was  entitled  to  recover.  Connecticut 
Fire  Ins.  Co.  v.  Erie  R.  R.  Co.  73  N.  Y.  399.  1878.  Rev'g 
10  Hun,  59. 

§  7.  If  a  loss  is  occasioned  by  the  wrongful  act  of  an- 
other, company  is  subrogated  to  the  rights  and  remedies 
of  the  assured,  and  may  maintain  an  action  in  its  own 
name  asrainst  the  wrong-doer.  If  the  assured  receives  the 
damages  from  the  wrong-doer  before  payment  by  the  in- 
surer, the  amount  so  received  will  be  applied  in  discharge 
of  the  policy.  If  the  wrong-doer  pays  assured  after  pay- 
ment by  the  insurer,  with  knowledge  of  the  facts,  it  is  re- 
garded as  a  fraud  upon  the  insurer,  and  he  will  not  be 
protected  from  liability  to  the  latter.  Connecticut  Fire 
Ins.  Co.  V.  Erie  R.  R.  Co.  73  N.  Y.  399.  1878.  Rev'g  10 
Hun,  59. 


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304 


y 


SUBROGATION. 


S8. 


§  o.  Semhleihfit  an  insurance  company  acquires  no 
right  by  subroga'Won  until  full  payment  of  the  loss  to  tlie 
assured.  People's  Ins.  Co.  v.  Straehle,  2  Cin.  Supr.  Ct.  18C. 
1878. 

§  0.  Assured,  being  insolvent,  after  payment  of  his 
loss  by  an  insurance  company,  commenced  an  action 
against  a  railroad  company  whose  engines,  it  was  alleged, 
caused  the  lire.  The  insurance  company  filed  a  bill  in 
equity  for  an  injunction  restraining  the  settlement  of  such 
claim,  and  asked  to  be  subrogated  to  the  extent  of  the  in- 
surance. Held,  that  such  injunction  was  proper,  and 
should  be  continued  until  the  case  against  the  rai^  1 
company  was  finally  determined.  Hartford  Fire  In 
V.  Penuell,  2  Brad  well,  609.     1878. 

§  10.  One  Forbes,  owner  of  the  building  in  question, 
leased  it  to  another  by  the  name  of  Bonner,  by  a  lease 
which  rendered  the  latter  bound  to  repair,  "  except  dam- 
aged, by  fire,  destruction  by  storm  or  tempest  of  the  build- 
ing or  any  part  thereof,  or  destruction  by  foreign  2nemies." 
Forbes  insured  the  house  by  a  policy  against  fire,  covering 
injury  by  explosion  of  gas.  In  1877  the  corporation  of 
Brighton,  while  repairing  the  streets  with  a  steam  railway, 
owing  to  its  great  weight  damaged  a  pipe  and  caused  an 
escape  of  gas  into  the  building,  where  it  exploded  and  did 
considerable  damage.  Forbes  sold  the  house  and  the  pol- 
icy to  a  third  party,  and  after  some  negotiation  the  iiisur- 
ance  company  paid  the  latter  the  sum  of  £750.  The  lessee 
received  from  the  corporation  of  Brighton  the  amount  of 
damage  done  to  the  house  by  the  explosion,  and  with  the 
sum  received  reinstated  the  house.  At  the  time  the  insur- 
ance company  paid  to  the  purchaser  the  sum  of  £750,  they 
were  not  aware  that,  by  the  terms  of  the  lease,  the  lessee 
was  bound  vO  make  good  the  injuries  done  by  an  explo- 
sion of  gas.  The  insurance  company,  upon  learning  that 
the  building  had  been  reinstated  by  the  lessee,  claimed 
from  the  purchaser  the  sum  which  had  been  paid  by  them, 
£750,  and  upon  his  refusal  brought  an  action  to  recover  it. 
Held,  that  such  action  would  lie,  and  that  defendant  was 
liable ;  that  the  company,  upon  payment  of  the  loss,  was 


subrogated  u 


all  the  rights  of  the  assured  as  against  the 


TAXATION. 


305 


lessee,  iiiul  tliat,  when  the  latter  did  repair,  the  insurance 
company  must  have  the  benefit.  Darrell  v.  Tibbetts, 
L  R.  0  Q.  B.  Div.  5G0.     1880. 

§  11.  When  a  fire  has  occurred  occasioned  by  negli- 
gence of  a  third  party,  and  destroying  property  insured 
by  several  companies,  the  latter,  by  their  payment  of  the 
loss,  are  subrogated  to  the  rights  of  the  assured  against 
such  third  party,  and  may  maintain  an  action  in  their  own 
names  jointly  with  the  assured.  Swarthout  v.  Chicago  <fe 
Northwestern  R  R  Co.  49  Wis.  625.     1880. 

See  Damages,  §  3.    Evidence,  40.     Mortgagor  and  Mortgagee,  9,  16,  28, 
30,  43,  40,  47.     Who  May  Sue,  20. 


TAXATION. 


§  I.  An  act  providing  for  the  imposition  of  a  tax  of 
3  per  cent,  upon  the  amount  of  the  premiums  collected  and 
uncollected,  held^  unconstitutional.  Franklin  Ins.  Co.  v. 
State,  5  W.  Va.  349.     1872. 

§  2.  A  tax  imposed  by  a  State  legislature  upon  a  fire 
insurance  company  created  by  and  under  its  laws,  upon 
the  entire  premiums  of  the  company,  received  from  all 
sources,  whether  within  or  without  the  State,  is  not  ille- 
gal or  unconstitutional  as  being  in  violation  of  the  Con- 
stitution of  the  United  States  prohibiting  interference 
with  or  regulation  of  inter-State  commerce.  Ins.  Co.  v. 
The  Commonwealth,  87  Pa.  173.     1878. 


Vol.  II.— 20 


if:    'i: 


THEFT. 

§  1.  Condition  that  company  shall  not  be  liable  for 
"  loss  or  damage  by  theft  at  or  after  any  fire,"  is  binding 
on  the  insured.  Li  v.,  L.  &  G.  Ins.  Co.  v.  Creighton,  51 
Ga.  95.     1874. 


TITLE. 


Ml 


!|i 


§  1.  A  tenant  from  year  to  year  cannot  insure  aa 
-owner.  Crockford  v.  Lond.  &  Liv.  Fire  Ins.  Co.  5  Allen, 
N.  B.  152.     1861.    . 

§  2.  Policy  being  issued  with  knowledge  of  company, 
with  error  in  name  of  assured,  loss  being  made  payable  to 
third  party;  in  a  suit  by  the  latter,  Held,  that  defendant 
could  not  insist  upon  such  error  as  a  defense  upon  ground 
that  the  title  was  in  another  person  than  the  one  named 
as  assured.  Solms  v.  Rutgers  Fire  Ins.  Co.  2  Tr.  App.  227. 
1867.    8.  c.  4  Abb.  Ct.  App.  Dec.  279. 

§  3.  Policy  contained  condition,  "  property  must  be 
insured  in  the  names  of  all  the  owners,  and  applicant 
must  state  the  interest  of  each  owner,  <fec."  It  appearing 
that  the  insured  property,  grain,  was  insured  in  the  name 
of  the  plaintiff,  who  had  given  warehouse  receipts  for  it 
to  several  banks.  Held,  tliat  the  condition  was  broken, 
and  plaintiff  could  not  recover.  McBride  v.  Gore  District 
Mat.  Ins.  Co.  30  Up.  Can.  Q.  B.  451.     1870. 

§  4.  Sole  and  unconditional  ownership  is  not  affected 
by  existence  of  a  chattel  mortgage.  Hubbard  v.  Hartford 
Fire  Ins.  Co.  33  Iowa,  325.     1871. 


TITLE. 


307 


msure  as 


S  5.  PossessioQ  and  acts  of  •ownership  are  prima 
facie  evidence  of  ownership.  Kansas  Ins.  Co,  v.  Berry,  8 
Kans.  159.  1871.  s.  v.  Franklin  Fire  Ins.  Co.  v.  Chicago 
Ice.  Co.  36  Md.  102.     1872. 

§  (3.  Actual  possession  under  a  deed  with  a  claim  of 
the  fee,  raises  presumption  of  an  estate  in  fee.  Wihne- 
sheik  Ins.  Co.  v.  Schueller,  60  111.  46.').     1871. 

§  7.  When  property  has  been  sold  on  judgment  and 
execution  against  the  assured,  the  time  for  redemption  not 
having  expired,  the  title  of  the  assured  cannot  be  said  to 
be  "  entire,  unconditional  and  sole."  Reaper  City  Ins.  Co. 
V.  Brennan,  58  111.  158.     1871. 

§  8.  The  existence  of  a  mortgage  does  not  make  false 
a  representation  by  the  assured  that  he  held  the  title  in 
fee  simple.  White  v.  Agricultural  Ins.  Co.  22  Up.  Can. 
C.P.  98.     1871. 

§  9.  Assured  having  contract  to  furnish  wood  to  a  rail- 
road company  was  accustomed  to  drawing  and  piling  it  at 
a  convenient  place  along  their  track.  The  company  would 
take  from  the  piles  as  wanted,  giving  vouchers  for  such 
portion  as  was  removed  only  and  paying  for  the  same. 
Held^ih'Ai  the  title  to  the  wood  piled, and  not  removed  by 
the  company,  remained  in  the  assured.  Home  Ins.  Co.  v. 
Heck,  65  111.  111.     1872. 

§  1 0.  The  fact  that  goods  are  held  under  a  bill  of  sale,  a 
lien  being  reserved  by  the  vendor  as  security  for  a  part  of  the 
consideration  does  not  prevent  the  purchaser  and  assured 
from  being  the  entire,  imconditional  and  sole  owner.  Man- 
hattan Ins.  Co.  V.  Barker,  7  Ileiskell,  503.     1872. 

§  11.  Where  a  husband  erects  a  dwelling  on  his  wife's 
lot,  and  with  her  occupies  it,  and  as  her  agent  effects  an 
insurance  for  their  mutual  benefit,  though  in  his  own 
name,  and  company,  aware  of  these  facts,  issues  the  policy 
and  receives  the  premium,  he  may  recover  on  policy  in 
case  of  loss.  Am.  Cent.  Ins.  Co.  v.  McLanathan,  1 1  Kans. 
533.     1873. 


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308 


TITLE. 


§  12.  Assured  holding  conveyance  obtained  by  his 
fraud,  does  not  destroy  his  title,  or  insurable  interest.  Such 
a  conveyance  is  not  void,  but  voidable  only.  An  insur- 
ance company  cannot  avoid  liability  by  setting  up  fraud 
committed  on  third  parties.  Phoenix  Ins.  Co.  v.  Mitchell, 
67  111.  43.  1873.  In  such  a  case  as  between  the  assured 
and  his  vendor  the  insurance  money  represents  the  prop- 
erty destroyed.    Id. 

§  13.  Policy  required  that  if  the  interest  of  the  in- 
sured should  be  less  than  the  entire,  unconditional,  abso- 
lute and  sole  ownership,  it  should  be  so  represented  and 
expressed  in  the  policy,  otherwise,  it  should  be  void  and 
assured  was  in  possession  under  a  contract  of  purchase, 
but  had  failed  to  pay  the  purchase- money  that  was  past 
due.-  Furthermore,  he  had  neglected  for  the  three  preced- 
ing years  to  pay  the  taxes,  <fec.,  and  there  were  three  out- 
standing certificates  of  sale  for  such  unpaid  taxes.  Held, 
that  the  sole,  unconditional  and  entire  ownership  of  and 
title  to  the  premises  were  not  in  the  assured.  Ilinmau  v. 
Hartford  Fire  Ins.  Co.  36  Wis.  159.     1874. 

§  14.  An  intention  to  form  a  partnership  or  an  agree- 
ment to  create  one,  does  not  create  a  partnership  so  as  to 
prevent  assured  from  being  the  sole  and  unconditional 
owner  of  tiie  property.  Nor  does  the  mere  fact  that  a 
person  puts  a  certain  aUiOunt  of  money  in  the  business, 
and  permits  his  name  to  be  used  as  a  partner,  make  such 
person  a  joint-owner  of  the  goods  used  in  the  business, 
unless  so  understood  and  agreed.  As  between  third  par- 
ties, they  would  oe  partners,  but  not  between  themselves. 
Lycoming  Ins.  Co.  v.  Barringer,  73  111.  230.     1874. 

§  15.  When  policy  is  issued  direct  to  separate  par- 
ties named  who  are  together  the  absolute  owners  of  the 
property,  the  fact  that  one  has  a  less  interest  does  not 
operate  to  defeat  the  insurance  under  the  clause  requiring 
representation  and  statement  of  title  and  interest  in  the 
policv  when  less  than  absolute  ownership.  Such  a  condi- 
tion IS  only  obligatory  upon  the  insured  when  the  united 
interest  of  the  insured  in  the  property  is  less  than  abso- 
lute.    Rankin  v.  Andes  Ins.  Co.  47  Vt.  144.     1874. 


TITLE. 


309 


§  16.  Tlie  existence  of  a  raortgaq-e  encumbrance  un- 
represented and  unexpressed,  does  not  render  the  policy 
void  under  condition  that  "  if  the  interest  of  the  assured 
be  any  other  than  the  entire,  unconditional,  and  sole  own- 
ership for  use  and  benefit  of  the  assured  it  must  be  so  rep- 
resented and  expressed  in  the  policy,  otherwise,  it  shall  be 
void."     Clay  Fire  Ins.  Co.  v.  Beck,  43  Md.  358.     1875. 

^5  17.  If  the  assured  at  the  time  of  the  issue  of  the 
policy  holds  only  the  bare  legal  title  with  an  existing  ob- 
ligation by  written  contract  to  transfer  it  to  a  purchaser 
in  whom  is  the  entire  equitable  estate,  such  interest  must 
be  truly  stated  in  the  policy  under  the  clause  requiring 
interest  to  be  stated  if  anything  less  than  the  sole  absolute 
unconditional  ownership.  Clay  Ins.  Co.  v.  Huron  Man.  Co. 
31  Mich.  346.     1875. 

^18.  Insured  bought  goods  in  an  auction  store,  and 
left  them  there  for  sale  under  his  direction,  with  an  agree- 
ment that  from  the  first  proceeds  of  the  sale,  the  vendor 
should  be  paid  $3,000 ;  and  if  the  auctioneers  advanced 
money,  they  were  to  retain  possession  of  goods  as  security. 
There  was  no  evidence  that  such  advance  was  made. 
Heldj  there  was  no  such  limitation  of  assured's  title  as 
owner,  as  required  his  interest  to  be  expressed  in  the  pol- 
icy, and  there  was  no  encumbrance.  Franklin  Fire  Ins. 
Co.  V.  Vaughan,  2  Otto,  516.     1875. 

§  10.  Assured  is  not  required  to  disclose  the  partic- 
ulars of  his  title  unless  interrogated  in  respect  thereto  or 
it  is  made  imperative  upon  him  by  a  condition  of  the  pol- 
icy. West  Rockingham  Fire  Ins.  Co.  v.  Sheets,  26  Grat. 
854.     1875. 

8  20.  Aisured  who  holds  warehouse  receipt  indorsed 
to  liun  as  collateral  security  for  advances  may  be  properly 
and  legally  insured  as  the  owner  of  the  property.  Wilson 
V.  Citizens'  Ins.  Co.  19  L.  C.  Jurist,  175.     1875. 

§  21.  When  there  is  no  condition  in  policy  which  re- 
lates to  matters  of  title  in  such  case  the  silence  of  the  in- 
sured as  to  the  precise  condition  of  title  is  not  a  ground 


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310 


TITLE. 


of  defense  although  interest  in  ownership  may  not  he  ab- 
solute in  law,  there  is  no  false  representation  in  assured 
representing  the  building  insured  as  "  my  residence."  The 
nature  of  his  title  and  interest  may  be  fiiUy  explained  in 
such  case  upon  trial  by  parol  testimony.  Liv^.,  Lond.  & 
Globe  Ins.  Co.  v.  McGuire,  52  Miss.  227.     1876. 

§  22.  Existence  of  a  deed  of  trust  upon  a  building 
as  security  for  a  debt  does  not  prevent  the  assured  from 
being  the  sole  and  unconditional  owner.  Manhattan  Ins. 
Co.  V.  Weill,  28  Grat.  389.     1877. 

§  23.  Assured  who  holds  property  in  trust  for  vendor 
until  purchase-money  is  paid  is  not  the  sole,  absolute  and 
unconditional  owner.  Farmers'  Ins.  Co.  v,  Curry,  6  Ins. 
L.  J.  733.     1877.    Ky. 

§  24.  Naked  possession  cannot  be  held  to  be  a  sole 
absolute  ownership.  Porter  v.  ^tna  Ins.  Co.  6  Ins.  L.  J. 
928.     1877.     U.  S.  Circuit,  Mich. 

§  9,5.  Policy  provided  tliat  if  building  "  should  stand 
on  leased  ground  it  must  be  so  represented  to  the  com- 
pany and  80  expressed  in  written  part."  At  time  of  its 
issue  there  was  an  outstanding  lease  to  third  party  for  ten 
years.  It  was  admitted  that  the  plaintiff  was  "  the  owner 
in  fee."  Nothing  was  expressed  in  policy.  Jleld^  plaint- 
iff entitled  to  recover.  Ins.  Co.  v.  Haven,  5  Otto,  242. 
1877. 

§  2C.  A  party  cannot  be  the  sole  and  unconditional 
owner  when  there  exists  a  vendor's  lien  for  unpaid  pur- 
chase-money. Farmers'  Ins.  Co.  v.  Curry,  13  Bush  (Ky.), 
312.     1877. 

§  27.  Ptilicy  provided  that  if  the  interest  of  the  as* 
sured  was  other  than  "  entire  unconditional  and  sole  own- 
ership" it  must  be  so  expressed.  At  time  of  its  issue 
there  was  an  outstanding  lease  to  third  party  for  ten  years. 
It  was  admitted  on  the  trial  that  plaintiff  was  the  "  owner 
in  fee."  Nothing  was  expressed  in  the  policy.  JleM,  that 
plaintiff  was  entitled  to  recovei'.  Ins.  Co.  v.  llaven,  5  Otto, 
242.     1877. 


TITLE. 


311 


§  28.  Policy  contained  usual  condition  that  if  the  in- 
terest of  the  assured  was  not  sole  and  absolute  ownership, 
it  should  be  so  represented  and  expressed  in  the  policy, 
otherwise  it  should  be  void.  Company  admitted  on  trial 
that  the  assured  owned  the  fee  to  the  land  upon  which 
building  insured  stood.  It  appeared  in  the  proofs  that  the 
premises  were  subject  to  a  lease.  Company  offered  no 
evidence,  and  court  directed  a  verdict  for  plaintiff.  HeU^ 
no  error ;  that  the  admission  of  ownership  in  fee  of  the 
land  created  presumption  conclusive,  in  absence  of  proof 
to  contrary,  that  title  to  the  building  was  the  same.  That 
the  existence  of  the  lease  did  not  prevent  the  assured  from 
being  the  sole  and  absolute  owner,  <fcc.  Lycoming  Ins. 
Co.  V.  Haven,  7  Ins.  L.  J.  449.     1877.     U.  S.  Circuit,  111. 

§  29.  It  is  true  that  assured  owns  a  building  notwith- 
standing the  existence  of  a  vendor's  lien  for  unpaid  pur- 
chase money  and  occupies  it  notwithstanding  that  his  son 
and  son-in-law  both  live  in  the  same  building.  Chatillon 
V.  Canadian  Mut.  Fire  Ins.  Co.  27  Up.  Can.  C.  P.  450. 
1877. 

§  30.  Company  defended  upon  ground  that  the  build- 
ing insured  was  erected  on  land  of  another  on  which  as- 
sured was  a  trespasser,  and  that  facts  material  to  the  risk 
were  concealed.  It  appeared  that  the  assured  entered 
upon  the  land  and  obtained  the  insurance  under  a  reason- 
able and  honest  belief  that  he  had  title,  and  that  he  did 
not  withhold  the  knowledge  of  a  dispute  about  his  title 
in  bad  faith.  IMd^  that  plaintiff  was  entitled  to  recover. 
Monroe  County  Mutual  Ins,  Co.  v.  Robinson,  7  Ins.  L.  J. 
636.     1878.     Pa. 

§  31.  If  assured  lias  only  a  leasehold  interest  in  the 
property  at  the  time  of  obtaining  the  policy  and  it  is  not 
so  expressed  in  it  the  insurance  is  void.  Mers  v.  Fi'anklin 
Ins.  Co.  08  Mo.  127.     1878. 

§  32.  Policy  provided  that  "  if  the  interest  of  the 
assured  be  any  other  than  the  entire,  unconditional,  tree 
and  unencumbered  ownership  of  the  property,  and  is  not 
80  expressed  in  written  |)ortion  of  policy "  it  should  be 


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312 


TITLE. 


void.  The  interest  of  assured  was  subject  to  a  mortgage, 
which  was  not  stated  in  the  policy.  Held,  that  neither  the 
assured  or  plain tiflf,  to  whom  loss  was  payable,  could  re- 
cover. Fitchburg  Savings  Bank  v.  Amazon  Ins.  Co.  125 
Mass.  431.     1878. 

§  33.  [f  assured  was  the  entire,  unconditional  and 
sole  owner  of  the  property  insured,  for  his  own  benefit, 
and  had  undisputed  possession  of  it  at  date  of  policy,  the 
fact  that  it  was  bought  in  the  name  of  another  in  whose 
name  title  was  recorded,  does  not  vitiate  the  insurance, 
there  being  no  question  of  fraud  or  concealment.  Amer- 
ican Basket  Co.  v.  Farmville  Ins.  Co.  3  Hughes,  251. 
1878. 

§  34.  An  existence  of  an  encumbrance  by  mortgage 
makes  the  interest  of  the  assured  other  than  the  entire 
unconditional  and  sole  ownershif*.  McLeod  v.  Citizens' 
Ins.  Co.  3  Russel  &  C.  N.  S.  15(3.     1878. 

§  35.  When  a  party  holds  an  equitable  interest  only 
by  contract  of  purchase,  the  title  to  remain  in  the  vendor 
until  consideration  is  fully  paid,  if  insurance  is  obtained 
by  the  former  in  his  own  name,  his  interest  must  be  truly 
stated,  otherwise  policy  is  void  on  the  ground  of  conceal- 
ment, insured  being  required  by  one  of  the  conditions  of 
the  policy  to  state  whether  any  other  person  had  an  inter- 
est in  the  insured  property,  and  if  so,  its  nature.  Agri- 
cultural Ins.  Co.  V.  Montague,  38  Mich.  548.     1878. 

i^  30.  Policy  insured  Van  Tuyl  &  Co.  "as  interest 
may  appear."  IMd,  that  these  words  waived  a  specific 
statement  of  interest  required  by  the  policy.  De  Wolf  v. 
Capital  City  Ins.  Co.  16  Hun,  116.     1878. 

§  37.  Assured  had  purchased  the  i)roperty  at  an  or- 
phans' court  sale,  the  terms  of  which  were  one-half  cash 
and  the  other  lialf  in  one  year.  After  the  sale  was  con- 
firmed the  policy  in  suit  was  obtained.  Ilehl,  that  al- 
though plaintiff's  title  was  an  equitable  one  it  neverthe- 
less vested  in  him  the  entire  unconditional  and  sole  own- 
ership subject  to  the  payment  of  the  balance  of  the  i)ur- 


TITLE. 


313 


chase- money,  and  that  the  insurance  could  not  be  defeated 
by  a  failure  to  have  the  exact  nature  of  the  +'tle  indorsed 
upon  the  policy ;  that  the  balance  due  upon  the  purchase- 
was  practically  an  encumbrance,  and  the  company  should 
have  made  ir.fiuiry  in  regard  to  encumbrances ;  not  having 
done  so  there  could  be  no  defense  founded  upon  the  fact 
of  its  existence.  Millville  Mutual  Fire  Ins.  Co.  v.  Wylgus, 
88  Pa.  107.  1878.  Chandler  v.  Commerce  Fire  Ins.  Co. 
88  Pa.  223.     1878. 

§  38.  Policy  provided  that  if  the  interest  of  the  in- 
sured was  other  than  absolute  ownership  for  use  and 
benefit  of  the  insured  it  must  be  so  represented  and  ex- 
pressed in  policy,  otherwise  it  should  be  void.  It  ap- 
peared that  by  agreement  with  the  assured,  a  third  party 
was  to  have  a  certain  proportion  of  the  net  profits  from 
the  sale  of  the  property  insured,  in  consideration  of  which 
he  should  give  his  time  to  the  business.  Held^  that  this 
did  not  prevent  the  ownership  in  the  assured  from  being 
for  his  use  and  benefit ;  that  it  might  also  be  of  some  ad- 
vantage to  another  does  not  make  the  assured's  ownership 
for  the  use  and  benefit  of  such  party  within  the  meaning 
of  this  clause  of  the  policy.  Boutelle  v.  Worcester  Fire 
Ins.  Co.  51  Vt.  4.     1878. 

§  39.  Policy  contained  provisions  as  follows  :  "  If  the 
interest  of  the  insured  be  any  other  than  entire,  uncondi- 
tional and  sole  ownership  for  the  use  and  benefit  of  the 
assured,  or  if  the  building  insured  stand  on  leased  ground, 
it  must  be  so  expressed  in  written  part,  otherwise  it 
should  be  void ; "  also,  "  if  property  be  sold  or  transferred, 
or  upon  the  passing  or  entry  of  a  decree  of  foreclosure,  or 
any  change  takes  place  in  the  title  or  possession  *  *  *, 
or  if  the  interest  of  the  assured,  whether  as  owner,  trustee, 
consignee,  factor,  agent,  mortgagee,  lessee,  or  otherwise,  be 
not  truly  stated  in  the  policy,  it  shall  be  void."  At  the 
time  the  policy  was  obtained,  assured  was  the  owner  in 
fee  of  the  building  insured,  subject  to  certain  mortgages 
and  to  a  lease  given  by  him,  running  for  about  three  and 
a  half  years.  Trial  court  ruled  that  the  interest  of  the 
assured  was  not  sufficiently  expressed  in  the  policy,  and 


I  :-a 


314 


TITLE. 


that  it  was  therefore  void.  Policy  made  no  mention  of 
these  encumbrances.  Held,  error.  Dolliver  v.  St.  Joseph 
Fire  Ins.  Co.  128  Mass.  3 If).     1879. 

§  40.  The  fact  that  the  wife  of  the  assured's  vendor 
has  a  contingent  right  of  dower  in  the  premises  of  the  in- 
sured, does  not  prevent  the  assured  from  being  the  sole, 
absolute  and  unconditional  owner.  Virginia  Fire  Ins.  Co. 
V.  Kloeber,  31  Grat.  749.     1879. 

§  41.  A  bill  of  sale  executed  and  delivered  as  securi- 
ty in  the  nature  of  a  chattel  mortgage,  does  not  avoid  a 
policy  under  the  condition  as  to  sole  and  unconditional 
ownership.      —      -        -       -     -         -       _.  _ 

1879. 


Kronk  v.  Birmingham  Ins.  Co.  91  Pa.  300. 


§  42.  In  the  absence  of  any  specific  inquiiy  or  any 
special  stipulation  in  the  policy,  the  interest  of  the  assured 
as  equitable  owner  is  sufficiently  descriV)ed  in  the  policy 
by  the  words  "his  dwellinsj-house."  Walsh  v.  Philadel- 
phia Fire  Association,  127  Mass.  383.     1879. 

§  43.  Party  in  possession  under  contract  of  purchase, 
conceded  to  be  in  force,  is  the  "  owner  in  equity,"  and  a 
statement  by  him  in  an  application  for  insurance  that  he 
owns  the  property  is  not  untme,  and  cannot  be  considered 
as  a  breach  of  a  condition,  forfeiting  policy,  if  interest  of 
assured  is  any  other  than  entire,  sole,  and  unconditional 
ownership,  and  is  not  so  represented  to  the  company. 
Pelton  v.  Westchester  Fire  Ins.  Co.  77  N.  Y.  005.  1879. 
Affi'g  13  Ilun,  23. 

§  44.  An  individual  having  insured  in  the  name  of 
the  "  National  Slipper  Co. ,"  //cVJ,  that  in  the  absence  of 
concealment  or  misrepresentation  about  the  matter  there 
was  no  such  misstatement  of  interest  or  title  as  to  avoid 
the  policy.  A  mere  variance  of  name  cannot  prejudice 
where  the  identity  of  person  appears.  Clark  v.  German 
Mutual  Fire  Ins.  Co.  7  Mo.  App.  77.     1879. 

§  45.  The  existence  of  a  lien  for  unpaid  purchase- 
money  does  not  prevent  the  assured  from  being  the  sole 


TITLE. 


316 


and  absolute  owner.   Wooddy  v.  Old  Dominion  Ins.  Co.  31 
Grat.362.     1879. 

§  46.  Application  required  assured  to  state  fully  his 
interest,  whether  as  owner,  mortgagee,  &c.,  to  which  the 
answer  was  "  owner."  It  appeared  that  the  assured  owned 
sixty  out  of  the  sixty-four  shares  in  the  boat  insured. 
Held,  that  the  answer  was  not  literally  untrue,  and  that 
in  the  absence  of  fraud  it  was  true  in  letter  and  in  spirit, 
and  plaintiff  was  entitled  to  recover.  Lyon  v.  Stadacona 
Ins.  Co.  44  Up.  Can.  Q.  B.  472.     1879. 

§  47.  A  married  woman  entitled  to  certain  property 
bequeathed  to  her  by  will,  may  properly  and  correctly 
represent  herself  as  the  owner.  Butler  v.  Standard  Fire 
Ins.  Co.  26  Grant  Ch.  341.     1879. 

§  48.  The  acceptance  of  a  policy  containing  conditions 
that  if  interest  of  assured  is  anything  but  the  absolute 
ownership,  <fec.,  it  must  be  so  stated  and  indorsed  without 
any  representation  as  to  title,  or  any  statement  of  the  spe- 
cific interest  of  the  assured,  amounts  to  a  declaration  on 
part  of  the  assured  that  his  interest  is  an  absolute  one. 
If  assured  truly  states  his  interest  to  company's  agent,  the 
latter's  failure  to  incorporate  it  in  the  policy  will  not  avoid 
the  insurance.  Mers  v.  Franklin  Ins.  Co.  8  Ins.  L.  J.  505. 
1870.    Mo. 

§  49.  Policy  insured  "  S.  D.  Wood  and  Moore  &  Co., 
as  interest  may  appear^  Wood's  interest  was  that  of 
mortgagee.  Ihere  were  conditions  as  follows  :  "  If  inter- 
est of  assured,  whether  as  owner,  trustee,  agent,  mortgagee, 
cfec,"  or  otherwise,  be  not  stated  in  the  policy,  it  should  be 
void  ;  also,  "  if  interest  of  assured  be  any  other  than  the 
unconditional  sole  ownership,  tfec,  it  must  be  so  expressed 
in  written  part  of  policy,  otherwise  it  should  be  void." 
Held,  that  interest  was  sufficiently  stated,  and  that  there 
was  no  breach  of  conditions.  Dakin  v.  Liverpool,  London 
and  Globe  Ins.  Co.  77  N.  Y.  COO.     187U. 


M 


^■im 


§  50.    When  defense  is  based  upon  false  representa- 
tion or  concealment  in  reference  to  title,  if  the  policy  is 


316 


TITLE. 


l-^M 


made  payable  in  case  of  loss  to  a  third  party  as  in- 
terest should  appear,  such  a  clause  establishes  notice  to 
the  defendant  of  some  interest  in  the  property  insured, 
which,  although  not  accurately  defined,  is  sufficient  to  put 
defendant  upon  inquiry.  Compr.ny,  in  such  a  case,  is 
chargeable  with  notice  of  all  such  facts  in  relation  to  in- 
terest as  a  proper  and  diligent  investigation  would  have 
developed.  Fame  Ins.  Co.  v.  Mann,  4  Bradwell,  485. 
1879. 

§  51.  Company  having  issued  its  policy  without  re- 
quiring any  application  from  the  assured,  or  any  represen- 
tation of  any  character  in  relation  to  title  or  interest,  can- 
not subsequently  complain  that  the  interest  was  not  truly 
stated  in  the  policy  or  that  an  encumbrance  was  not 
disclosed.  Western  Ins.  Co.  v.  Mason,  5  Bradwell,  141. 
1879. 

§  52.  An  outstanding  contingent  right  of  dower  is 
not  such  an  interest  as  shows  that  the  assured  has  less 
than  a  perfect  title,  nor  does  it  constitute  an  encumbrance. 
The  failure  on  part  ot  assured  to  disclose  such  contingent 
right  does  not  ail'ect  the  insurance  in  the  absence  of  fraud 
or  increase  of  risk,  and  these  questions  are  properly  deter- 
mined by  the  jury.  Virginia  F.  and  M.  Ins.  Co.  v.  Kloe- 
ber,  9  Ins.  L.  J.  354.     1879.     Va. 

§  53.  Assured  although  in  possession  of  building  and 
real  estate  under  a  verbal  gift  and  promise  to  convey,  and 
has  paid  taxes  and  for  improvements,  &c.,  cannot  be  said 
to  be  the  sole  absolute  and  unconditional  owner.  Vine- 
land  V.  Security  Ins.  Co.  53  Md.  276.     1879. 

§  54.  Policy  required  interest  of  assured,  being  other 
than  sole  owner,  to  be  expressed  in  written  jiart  of  pol- 
icy. It  insured  A.  upon  "  his  property,"  tfec,  loss,  if  any, 
being  made  payable  to  B.  Property  was  in  possession  of 
A.  under  a  contract  of  purchase  whereby  title  was  to  re- 
main in  B.  until  fully  paid  for.  Fire  occurred  before  such 
payment  was  made.  Held,  that  policy  was  void  by  rea- 
son of  interest  of  assured  not  being  stated  in  the  policy. 
Lasher  v.  Northwestern  Nat.  Ins.  Co.  18  Hun,  98.     1879. 


TITLE. 


317 


141. 


§  55.  Court  charged  jury  as  follows :  "  It  seems  that 
this  property  was  owned  by  "Van  Wie  under  mortgage 
and  Mr.  Simons  had  judgment  against  it  and  it  became  his 
duty  to  see  that  the  property  sold  for  enough  to  pjiy  his 
debt.  He  procured  the  services  of  John  W.  Farrelly  to 
bid  in  the  property  for  him.  That  sheriif's  deed  to  John 
W.  Farrelly  has  been  lost.  It  was  sold  by  Farrelly  to 
Robinson  and  by  Robinson  to  Mrs.  Simons,  and  from  Mrs. 
Simons  to  Mr.  Simons.  All  of  which  appears  to  have  been 
done  prior  to  July  17th,  1871.  If  there  had  been  no  deeds 
by  Mr.  Farrelly  at  the  time,  and  Mr.  Simons  by  himself,  or 
through  his  agent  or  brother,  had  furnished  the  money  to 
Mr.  Farrelly  to  pay  the  purchase-money  Mr.  Farrelly 
would  have  been  a  trustee,  Mrs.  Simons  would  have  been 
a  cestui  qui  trust  and  Mr.  Simons  would  have  been  an  un- 
conditional owner  of  the  property.  A  man  who  buys 
property  through  another  holds  the  equitable  title,  and 
the  other  holds  a  legal  title.  We  say,  if  you  believe  that 
evidence,  Mr.  Simons  was  the  sole,  entire,  and  uncondi- 
tional owner  of  this  '  property.'  "  Held,  no  error.  Water- 
town  Fire  Ins.  Co.  v.  Simons,  9  Ins.  L.  J.  597.     1880. 

§  50.  Condition  provided  that  "  no  insurance  effected 
shall  be  good  and  valid  unless  the  assured  lias  a  good  and 
perfect,  unencumbered  title  at  the  time  of  effecting  any 
such  insurance,  or  unless  the  true  title  of  the  assured  and 
the  encumbrances,  if  any,  be  fully  disclosed  in  the  pro- 
posals for  insurance  and  be  also  specified  in  the  policy." 
Company  claimed  that  true  title  was  not  stated  as  required 
by  the  condition  by  reason  of  the  existence  of  a  lease  of 
the  property  for  5  years  which  was  recorded.  The  policy 
contained  a  statement  to  the  effect  that  the  premises  were 
occupied  Ijy  a  tenant.  Held,  that  the  title  refeiTed  to 
in  the  condition  ha<l  no  reference  to  possession  by  a 
tenant  under  an  ordinary  lease ;  that  the  policy  clearly 
contemplated  that  the  premises  were  then  occupied  by  a 
tenant ;  that  a  tenancy  implied  a  lease  and  that  if  com- 
pany wished  further  particulars,  they  should  have  called 
for  some  specific  information.  Having  issued  the  policy 
without  making  such  inquiry,  they  could  not  after  the  loss 
complain.     Semhle,  that  a  lease  for  life,  or  for  99  years, 


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TITLE. 


might  present  a  different  question.     LockwooJ  v.  Middle- 
sex Milt.  Ilia  Co.  47  Conn.  553.     1880. 

§  57.  Policy  insured  "George  Mark,  superintendent," 
in  fact,  the  property  belonging  to  several  persons,  five  in 
number,  who  owned  certain  definite  shares,  Mark  owning 
tburteen-forty-eights.  Mark  had  for  several  years  been 
superintendent  and  had  charge  of  the  boat  insured.  The 
agent  who  issued  the  policy  knew  that  Mark  was  not  the 
owner.  Policy  contained  the  usual  condition  providing 
that  if  the  interest  of  the  assured  was  not  the  absolute 
ownership,  it  should  be  so  represented  and  stated  in  the 
policy,  otherwise,  it  should  be  void.  Held,  that  the  de- 
scription in  the  policy  of  Mark  as  superintendent  was  u 
plain  indication  that  he  was  not  the  absolute  owner,  and, 
under  such  circumstances,  it  must  be  assumed  that  the  in- 
surance was  intended  for  the  benefit  of  the  real  owners 
just  as  if  the  policy  had  been  issued  to  a  person  describing 
him  as  agent.  "'  ^  ^^  *  ^  "'  ^  ^ 
1881. 


Mark  v.  National  Fire  Ins.  Co.  24  Ilun,  565, 


J^  58.     The  existence  of  a  lien  upon  an  undivided  half 
to  secure  a  debt  due  from  the  assured,  does  not  prevent 
him   from   being  the   sole,   absolute,  and   unconditional 
owner.     Carrigan  v.  Lycoming  Ins.  Co.  10  Ins.  L.  J.  fiO^ 
1881.     Vt. 

§  59.     The  right  of  a  third  party  to  a  .veyance 

upon  certain  conditions  which  have  not  I  complied 
with,  does  not  affect  title  of  assured,  aua  thu  insurance  is 
properly  in  his  name.  Carrigan  v.  Lycoming  Ins.  '  'o.  10 
Ins.  L.  J.  GOG.     1881.     Vt. 

§  60.  When  policy  is  issued  to  two  persons  jointly 
the  fact  that  the  assured  have  separate  and  distinct  inter- 
ests is  no  ground  of  objection  to  validity  of  the  insurance 
in  absence  of  an  express  requirement  in  the  policy  that  the 
precise  nature  and  extent  of  the  interests  should  be  repre- 
sented. Castner  v.  Farmers'  Mutual  Ins.  Co.  10  Ins.  L.  J. 
458.     1881.     Mich. 

§  61.  When  assured  owns  an  undivided  half  and  the 
other  half  is  owned  by  an  assignee  for  benefit  of  creditors 


TITLE. 


319 


subject  to  a  mortgage,  he  is  not  the  sole,  absolute,  and  un- 
conditional owner.  For  the  purpose  of  making  himself 
such  owner  it  is  nt-cessary  that  the  assured  should  ac- 
quire or  extinguish  the  interests  of  the  assignee  and  the 
mortgagee,  and  these  results  although  capable  of  being 
effected  without  writinjj,  cannot  be  accomplished  except 
by  transactions  containing  elements  necessary  to  make 
binding.  A  verbal  arrangement  without  consideration  is 
not  sufficient.  Miller  v.  Amazon  Ins.  Co.  10  Ins.  L.  J.  581. 
1881.     Mich. 

§  62.  The  condition  in  policy  requiring  that  if  the 
assured  is  not  the  absolute  and  unconditional  owner,  it 
must  be  so  represented  and  expressed,  refers  to  the  extent 
of  the  insurable  interest  of  the  assured  and  not  to  the 
validity  of  his  title;  so  long  as  the  assured,  under  claim  of 
right,  has  exclusive  use  and  enjoyment  of  the  insured  prop- 
erty without  any  assertion  of  an  adverse  right  or  interest 
in  it  by  any  other  person  he  is  the  owner  of  the  property. 
Miller  v.  Alliance  Ins.  Co.  12  Rep.  4.  1881.  U.  S.  Cir. 
N.Y. 

See  Alienation,  §  7,  33.  Concealment,  6,  8,  9.  Encumbrance,  17.  Estop- 
pel, 18,  21,  27,  38,  37.  Evidence,  11,  75.  Fraud  and  False  Swearing,  13. 
Insurable  Interest,  7,  21,  33,  34,  45.  Interest  in  Policy,  6.  Proofs  of  Loss, 
20.  Rebuild,  6.  Waiver,  15,  21.  Warranty  and  Representation,  17,  20,  25, 
28,  29,  63,  80,  83,  90,  98,  103. 


^ili, 


'I!' 


Ill 


irii 


TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE. 

§  1.  When  in  a  case  of  loss  liability  is  limited  to 
two-thirds  of  the  actual  cash  value  of  the  property  insured 
it  applies  to  each  separate  item  and  not  to  the  whole 
amount  of  insurance.  McCullock  v.  Gore  District  Mut. 
Fire  Ins.  Co.  32  Up.  Can.  Q.  B.  610.     1872. 

See  Contribution,  §  1,  13.    Mutual  Company,  37,  118. 


USAGE  AND  CUSTOM. 

§  1.  When  the  terms  employed  are  clear  and  precise 
in  themselves,  evidence  of  usage  and  custom  cannot  be  ad- 
mitted to  explain,  alter,  or  "impair  the  contract  as  made. 
Hearn  v.  New  England  Mut.  Ins.  Co.  P  Cliff.  318.  1870. 
8.  P.  Lattomus  v.  Farmers'  Mut.  Ins.  Co.  3  Houston  (Del.), 
254.  1873.  King  v.  Enterprise  Ins.  Co.  45  Ind.  44. 
1873.  Van  Alstyne  v.  ^tna  Ins.  Co.  14  Hun,  360. 
1878. 

§  2.  Evidence  of  the  business  habits  of  a  limited 
number  of  third  persons  engaged  in  a  similar  business,  is 
incompetent  to  discredit  testimony  of  plaintiff  as  to  amount 
of  stock  on  hand  at  time  of  fire.  Townsend  v.  Merchants' 
Ins.  Co.  4  Jones  &  Sp.  172.     1873. 

§  3.  In  a  suit  to  recover  value  of  goods  stored  in 
warehouse  the  custom  of  other  companies  in  writing  pol- 
icies on  goods  therein  is  not  admissible.  Hartford  Fire 
Ins.  Co.  V.  Farrisch,  73  111.  166.     1874. 

§  4.  Where  there  is  an  established  custom  relating  to 
the  subject-matter  of  a  contract,  which  is  known  to  both 
parties  to  it,  it  may  be  presumed  that  contract  was  made 


USAGE  AND  CUSTOM. 


321 


with  reference  to  such  custom.  Action  was  brought  to 
recover  agent's  commissions.  Miller  v.  Ins.  Co.  of  N.  A.  1 
Abb.  N.  C.  470.     1876.    N.  Y.  Sup. 

§  5.  The  existence  of  a  custom  at  one  place  cannot  be 
inferred  from  the  practice  of  an  agent  at  another.  Rey- 
nolds V.  Continental  Ins.  Co.  36  Mich.  131.     1877. 

§  C.  It  is  error  to  exclude  evidence  tending  to  show 
that  certain  property  claimed  to  be  insured  by  reason  of 
being  part  of  business  by  custom,  is  not  so  insured  unless 
special  premium  is  paid  therefor.  St.  Nicholas  Ins.  Co.  v. 
Merchants'  Ins.  Co.  11  Hun,  108.     1877. 

§  7.  In  an  action  brought  by  company  upon  a  pre- 
mium note  given  by  a  captain  of  a  boat,  reliance  was  had 
upon  proof  of  a  custom  at  Pittsburg  for  captains  of  boats 
to  insure  and  give  notes  for  the  premium,  which  were 
binding  on  the  owners.  Held^  that  a  custom  so  long  per- 
sisted in  as  to  be  known  and  practiced  by  a  community  is 
the  law  of  the  particular  business  in  which  it  exists.  Such 
a  custom  is  presumed  to  be  in  the  view  of  the  parties 
when  they  contract.  No  particular  period  of  time  is  req- 
uisite to  the  establishn^ent  of  a  usage  so  as  to  affect  con- 
tracts. The  true  test  is  that  it  has  existed  a  suflScient 
length  of  time  not  only  to  have  become  generally  known 
to  the  dealers  who  are  to  be  affected  by  it,  but  also  to 
warrant  the  presumption  that  contracts  are  made  in  refer- 
ence to  such  usage  or  custom.  Nine  witnesses,  residents 
of  Pittsburg,  and  qualified  by  knowledge  of  the  business, 
having  testified  as  to  the  existence  of  the  custom  claimed 
to  exist,  their  evidence  is  sufficient  to  sustain  a  verdict. 
Adams  v.  Pittsburg  Ins.  Co.  10  Ins.  L.  J.  673.    1880.    Pa. 

§  8.  Upon  an  issue  as  to  authority  of  company's  agent 
to  consent  to  a  transfer  of  the  property  insured,  evidence 
of  a  custom  of  other  companies  is  inadmissible.  It  is 
doubtful  whether  company  could  be  bound  by  a  custom, 
but  conceding  that  it  would,  it  is  necessary  to  show  that 
it  had  knowledge  of  c-uch  custom,  or  that  it  was  so  general 
that  it  must  be  presumed  to  have  known  it.  Bradford  v. 
Homestead  Fire  Ins.  Co.  5  .  Iowa,  598.     1880. 

Vol.  ir.— 21 


I'  f^ 


!  M 


H  'J 


rr 


^■ 


322 


USAGE  AND  CUSTOM. 


§  9.  The.  evidence  of  a  custom  of  other  companies  in 
leference  to  authorizing  certain  acts  of  their  agents  is  not 
admissible  as  tending  to  prove  authority  of  agent  of  com- 
pany sued.  Bradford  v.  Homestead  Ins.  Co.  10  Ins.  L.  J. 
141.     1880.     Iowa. 

§  10.  Insurance  was  upon  "cottonseed  oil  factory;" 
issue  was  whether  use  of  cotton  gins  constituted  a  breach 
of  warranty  in  such  description.  The  court  charged  the 
jury :  "  If  you  believe,  from  the  evidence,  that  cotton  gins 
are  embraced  fairly  in  the  term  cotton-seed  oil  factory,  or 
if  you  believe,  from  the  evidence,  that  when  the  risk  was 
taken  cotton  gins  were  used  openly  and  publicly  in  that 
factory,  and  that  it  was  then  usual  in  Texas  to  run  them 
in  connection  with  such  factories,  then  find  for  the  plaint- 
iff." Held,  error,  in  absence  of  evidence  that  any  usage  in 
Texas  to  run  cotton  gins  in  cotton-seed  factories  having 
been  so  general  and  well  and  long  established  as  to  charge 
the  insurance  company  with  notice.  Texas  Banking  Co. 
v.  Hutchins,  53  Texas,  61.     1880. 

See  Agent,  §  3.  Cancellation,  11,  18.  Consummation  of  Contract,  14. 
Distance  between  Buildings,  1.  Evidence,  12,  16,  38,  67,  88.  Premium,  6. 
What  Property  is  Covered,  20. 


USE   AND   OCCUPATION. 

§  1.  Prohibited  use  and  occupation  by  a  tenant,  with- 
out knowledsfe  of  the  assured,  renders  the  policy  void. 
Steinmetz  v.  Franklin  Fire  Ins.  Co.  6  Phil.  Rep.  21.    1865. 

§  2.  The  use  or  occupation  of  the  premises  insured 
by  a  prohibited  business,  trade  or  avocation,  renders  pol- 
icy void  without  regard  to  the  question  of  increase  of  risk. 
Matthews  v.  Queen  City  Ins.  Co.  2  Cin.  Supr.  Ct,  109. 
1872. 

§  3.  Policy  contained  provision  in  writing,  as  follows: 
"the  above  premises  are  privileged  to  be  occupied  as  hide, 
fat  melting,  slaughter  and  packing  houses,  and  stores  and 
dwellings,  and  for  other  extra  hazardous  purposes"  and 
annexed  was  the  classification  of  hazards  into  hazardous, 
extra  hazardous,  and  specially  hazardous.  Property  used 
for  distillery  purposes,  classified  as  "  specially  hazardous," 
and  the  occupations  as  above  specifically  privile<;ed  be- 
longed to  same  class.  Held,  the  words  in  the  policy  "  or 
other  extra  hazardous  purposes,"  must  be  taken  to  mean 
purposes  of  the  same  class  as  those  before  specified,  and 
the  term  "extra  hazardous"  must  yield  to  the  specifica- 
tions accordingly.  That  plainti  J  had  a  right  to  use  prem- 
ises for  any  specially  hazardous  purpose.  Reynolds  v. 
Commerce  Fire  Ins.  Co.  47  N.  Y.  597.     1872. 

§  4.  Policy  provided  that  if  the  premises  should  be 
used  for  the  purpose  of  carrying  on  therein  any  trade  or 
vocation  denominated  extra  hazardous  in  a  class  of  hazards 
annexed  to  the  policy,  that,  from  thenceforth  so  long  as 
the  same  should  be  so  used,  the  policy  should  be  of  no 
force  or  effect.  Among  the  extra  hazardous  risks  so  spe- 
cified was  that  of  keeping  a  private  stable,  and,  at  the 
time  of  the  date  of  the  policy,  and  at  the  time  of  the  fire, 
a  part  of  the  building  insured  was  applied  by  the  plaintiff 
to  this  use.  It  appeared  that  at  the  time  the  policy  was 
obtained  the  agent  of  the  company  knew  that  the  build- 
ing in  question  was  in  part  used  as  a  stable.     Ileldy  that 


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324 


USB  AND  OCCUPATION. 


the  insurance  was  void  by  its  terms,  and  that  there  could 
be  no  application  of  the  doctrine  of  estoppel  founded  upon 
the  knowledge  of  the  agent.  Dewees  v.  The  Manhattan 
Ins.  Co.  6  Vroom,  N.  J.L.  R  366.     1872. 

§  5.  If  an  engine  is  occasionally  used  on  premises  in- 
sured at  time  policy  is  issued,  its  use  thereafter  caij.ot  be 
relied  upon  to  defeat  the  policy  on  the  ground  that  the 
risk  is  thereby  increased.  Commonwealth  v.  Hide  (k 
Leather  Ins.  Co.  112  Mass.  186.  1873.  And  see  Whitney 
V.  Black  River  Ins.  Co.  72  N.  Y.  117.     1878. 

§  6.  Policy  covered  merchandise  hazardous  and  not 
hazardous,  which  included  "cabinet  ware."  At  time  of 
its  issue  plaintiflfs  were  lessees  of  entire  building  containing 
the  stock.  Subsequently  ]:)laintiffs  permitted  a  firm  to 
come  in  and  occupy  several  floors  for  their  business  of  fin- 
ishing chairs.  They  employed  glue,  paint,  alcohol,  var- 
nish, and  benzine,  requiring  four  or  five  barrels  at  a  time. 
An  alcohol  lamp  used  for  heating  glue,  exploded,  and  the 
fire  ensued  in  consequence.  Policy  provided  "  that  if 
premises  should  be  used  for  purpose  of  carrying  on  any 
trade  or  occupation,  or  for  keeping  any  articles  specified 
as  hazardous  or  especially  hazardous  in  the  second  class  of 
hazards,  so  long  as  same  should  be  so  used,  policy  shall  be 
of  no  force  or  effect."  And,  also,  "if  the  risk  shall  bo  in- 
creased by  any  means  within  control  of  assured,  or  l)y  oc- 
cupation of  premises  for  more  hazardous  purposes  than 
permitted  by  this  policy,  it  shall  be  void."  Oil,  alcohol, 
painters'  stock,  tur[)entiue,  and  varnish  were  specified  as 
hazardous  or  specially  hazardous  in  second  class,  and 
among  the  trades  specified  in  same  class  as  specially  liaz- 
ardous  were  "  all  workshops,  manufacturing  establish- 
ments, trades  and  mills  not  above  enumerated  as  hazard- 
ous or  extra  hazardous."  No  ]irevious  mention  made  of 
trade  of  "chair  finishing."  JlcM,  verdict  sliould  have 
been  directed  for  defendant,  and  that  conceding  that  a 
stock  of  "cabinet  ware"  was  covered  by  the  policy,  it 
could  not  be  so  construed  as  to  permit  occui)ation  of 
premises  for  purposes  established  by  the  evidence.  That 
the  term  had  reference  to  article  m  the  finished  state. 
Appleby  v.  Astor  Ins.  Co.  54  N.  Y.  253.     1873. 


USE  AND  OCCUPATION. 


325 


§  7.  When  policy  insures  stock  of  family  groceries 
contai.-ed  in  a  building  occupied  as  a  meat  and  family- 
grocery  store,  and  there  is  a  prohibition  against  the  use  of 
the  building  as  a  retail  liquor  store,  and  also  a  clause  pro- 
viding that  nothing  else  than  a  distinct  agreement  clearly 
expressed  and  indorsed  upon  the  policy  should  be  con- 
strued as  a  waiver  of  any  condition  or  restriction,  and 
building  was  used  as  a  retail  liquor  store,  Held^  that  the 
fact  that  liquors  were  usually  kept  in  a  family  grocery 
store  did  not  prevent  a  forfeiture  of  the  insurance.  Peo- 
ple's Ins.  Co.  V.  Kuhn,  12  Ileiskell,  515.     1873. 

§  8.  The  terms  "  machine  and  repair  shop "  do  not 
necessarily  mean  that  no  work  is  to  be  carried  on  in  such 
an  establishment  except  in  iron ;  it  being  shown  in  evi- 
dence that  assured  also  carried  on  the  business  of  making 
shingles.  Held,  that  it  was  proper  to  be  left  to  the  jury 
to  detennine  whether  the  business  carried  on  was  that  of 
a  machine  and  repair  shop,  it  being  manifest  from  the 
tariif  of  rates  that  if  the  term,  machine  shop,  had  alone 
been  used,  such  term  might  have  allowed  the  insured  to 
do  wood  work  on  the  premises.  Chaplain  v.  Provincial 
Ins.  Co.  23  Up.  Can.  C.  P.  278.     1873. 

§  0.  Policy  insured  the  premises  as  a  "  dwelling,  «fe." 
This  was  found  to  mean  "  &c.,"  and  that  it  was  equivalent 
to  the  assertion  that  the  premises  were  occupied  for  the 
purpose  of  a  dwelling  and  other  purposes.  Building  was, 
as  a  matter  of  fact,  also  used  as  a  diinking  saloon,  which 
was  known  to  the  agent  at  the  time  he  issued  the  policy. 
Held,  plaintiff  was  entitled  to  recover.  Gouinlock  v.  Man- 
ufacturers' Ins.  Co.  43  Up.  Can.  Q.  B.  563.     1873. 

§  10.  Effect  of  returning  a  policy  by  company  to 
assured  after  notification  of  change  in  occupation  operates 
as  a  waiver  of  a  forfeiture  by  reason  of  such  use.  Ned- 
row  V.  Farmers'  Ins.  Co.  43  Iowa,  24.     1876. 

§  11.  The  facts  that  business  of  pianino  and  sawing 
lumber  is  carried  on  in  an  adjoining  building,  and  the 
shavings  are  conducted  by  a  tube  to  the  boiler  room  in 
building  insured,  and  there  used  for  fuel,  do  not  change 


if' 


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326 


USB  AND  OCCUPATION. 


the  nature  of  occupation  of  latter.    Keeney  v.  Home  Ins 
Co.  71  N.  Y.  396.     1877. 

§  12.  When  new  business  is  incidental  to  the  general 
business  done  when  the  insurance  was  effected  and  agent 
of  the  company  having  issued  policy  with  full  knowledge 
of  the  facts  as  to  the  use  and  occupation  of  the  premises, 
company  is  estopped  from  setting  up  any  defense  predi- 
cated upon  assured's  omission  to  give  formal  notice. 
Brink  v.  Merchants'  Ins.  Co.  49  Vt.  442.     1877. 

§  13.  Company  is  presumed  to  know  the  business 
which  is  made  the  subject  of  insurance,  and  for  that  rea- 
son to  intend  to  protect  what  may  properly  appear  to  con- 
stitute a  portion  of  it,  as  it  is  usually  carried  on.  And  it 
is  error  to  reject  evidence  bearing  upon  this  question. 
St  Nicholas  Ins.  Co.  v.  Merchants'  Ins.  Co.  11  Hun,  108. 
1877. 

§  14.  If  with  other  inquiries  company  fails  to  inquire 
as  to  occupation  unless  there  is  proof  of  concealment  of 
the  fact,  it  is  not  evidence  of  bad  faith  which  will  vitiate 
the  policy.  In  such  case  and  no  statement  is  made  in 
policy  as  to  occupation,  it  must  be  assumed  that  the  insur- 
ance was  made  without  regard  to  occupation.  Browning 
V.  Home  Ins  Co.  71  N.  Y.  508.     1877. 

§  15.  When  policy  describes  building  insured  as  be- 
ing occupied  for  the  manufacture  of  toys  and  it  contains  a 
condition  *'  if  the  occupation  be  changed  from  one  of  the 
class  denominated  specially  hazardous  to  that  of  another  of 
the  same  class  without  written  consent,  that  it  should  be 
void  " ;  and  subsequently  the  assured  manufactured  toy 
trunks,  small  nursery  chairs,  berry  and  market  basket*?,  ta- 
ble mats,  chair  stretchers  and  mop  handles.  Held,  that  a 
change  of  occupation  to  defeat  the  insurance  must  be  of  a 
substantial  substitution  of  one  distinct  and  specially  defined 
kind  of  manufacturing  from  tliat  of  another  equally  dis- 
tinct and  definite  kind  of  business,  and  that  the  condition 
referred  to  a  permanent  abandonment  of  the  old  business 
and  the  adoption  of  a  new  business  of  a  like  hazardous 
risk ;  that  the  business  of  the  manufactory  in  question 


USB  AND  OCCUPATION. 


327 


was  not  substantially  changed,  as  the  new  business  was 
incidental  to  that  which  was  done  when  the  insurance 
was  eflPected.     Brink  v.  Merchants'  Ins.  Co.  49  Vt.  442. 

1877. 

§  16.  An  occasional  use  by  a  carpenter  will  not  make 
policy  void.  Westchester  Fire  Ins.  Co.  v.  Foster,  90  111. 
121.     1878. 

§  17.  Policy  provided  that  "if  any  change  whatever 
shall  take  place  in  the  situation,  occupation,  use  or  condi- 
tion of  the  premises  insured  without  written  consent,"  it 
should  be  void.  Part  of  second  floor  was  let  for  a  Tilden 
and  Hendricks  club  room.  In  what  manner  the  club 
used  it  did  not  appear.  Held,  that  the  object  of  the 
clause  was  to  protect  against  increased  risk ;  that  the 
change  must  be  substantial,  and  that  a  mere  change  of 
tenants  was  not  such  a  change  in  the  use  and  occupation 
as  to  forfeit  the  policy.  Miller  v.  Oswego  and  Onondaga 
Ins.  Co.  18  Hun,  525.     1879. 

§  18.  Policy  provided  that  if  property  should  cease 
to  be  operated  as  a  mill,  it  should  be  void.  Local  agent 
of  company  knew  when  policy  was  issued  that  building 
was  used  for  storage  purposes,  and  was  not  being  operated 
as  a  mill.  Hekl^  that  the  continuance  of  such  use  did  not 
violate  the  condition.  Humphry  v.  Hartford  Fire  Ins.  Co. 
15  Blatch.  504.     1879. 

§  19.  Under  Maine  statute  change  in  occupancy  or 
vacancy  is  not  available  as  a  defense  unless  risk  is  there- 
by materially  increased.  Company  has  right  to  have  this 
question  submitted  to  jury.  Thayer  v.  Providence  Ins. 
Co.  70  Me.  531.     1880. 

§  20.  The  fact  that  a  large  building  covering  less 
than  one-fourth  of  an  acre,  besides  being  the  residence  of 
the  assured  is  also  used  as  a  hotel  does  not  effect  the  oper- 
ation of  statute  making  it  a  homestead  so  that  judgments 
against  the  assured  are  not  liens  upon  it.  Harriman  v. 
Queen  Ins.  Co.  49  Wis.  71.     1880. 

See  Alteration,  §  2.  Cancellation,  23.  Evidence,  44,  70,  73.  Illegality 
of  Contract,  3.  Increase  of  Risk,  17.  Lighting,  1.  Pleading  and  Practice, 
27.  Storing  and  Keeping,  3,  5,  0.  Title, '^ao.  Usage  or  Custom,  10,  War- 
ranty and  Ropre«entation,  5,  C,  31,  55,  57,  71,  73,  84,  100,  100. 


;^rl 


'«  V 


VACANT  OR  UNOCCUPIED. 

§  1.  Policy  provided  that  if  the  building  insured 
should  become  vacant  or  unoccupied,  notice  should  be 
^iven  to  the  company  that  directors  may  decide  whether 
it  would  be  prudent  to  retain  the  risk.  Failing  such 
notice  and  consent  on  part  of  the  company,  policy  should 
be  void.  Held,  that  the  condition  did  not  relate  to  an 
absence  from  personal  occupation  for  a  day  or  so ;  that 
when  the  non-occupation  is  longer  the  policy  remains  valid 
until  the  insured  has  had  a  reasonable  time  for  ^ivins 
rotice  to  the  company,  and  that  if  a  fire  takes  place  be- 
iovB  such  reasonable  time  has  expired,  company  is  liable. 
Three  days'  time  under  the  circumstance  oF  this  case  held 
not  to  be  unreasonable.  Canada  Land  Co.  v.  Canada 
Agricultural  Ins.  Co.  17  Grant  Ch.  418.     1870. 

§  2.  There  is  no  "change  of  possession"  within  the 
meaning  of  policy,  by  temporary  absence  of  assured  and 
family,  leaving  property  in  charge  of  agent  or  servant. 
Shearman  v.  Niagara  Fire  Ins.  Co.  4G  N.  Y.  526.     1871. 

§  3.  Condition  was  that  "  if  premises  shall  become 
vacant  and  unoccupied,  or  the  risk  be  increased  by  erec- 
tion of  neighboring  buildings,  or  by  any  means  whatever 
within  the  control  of  the  assured,"  without  consent  of  the 
company  policy  should  be  void.  //^'W,  that  condition  was 
in  nature  of  a  warranty,  that  plaintiff  could  not  recover, 
house  being  vacant,  without  proof  that  the  vacation  of 
the  house  was  beyond  his  control.  N.  A.  Fire  Ins.  Co.  v. 
Zaenger,  63  111.  4G4.     1872. 

§  4.  Policy  provided  that  "  buildings  unoccupied  are 
not  covered  by  this  policy,  unless  insured  as  such."  As- 
sured and  his  servants  while  engaged  in  carrying  on  a 
farm  contiguous  to  the  house  and  barn  insured,  took  their 
meals  in  the  house,  and  the  barn  was  used  for  the  usual 
purposes  for  storing  hay  and  tools,  but  no  cattle  were 
kept  in  it.  Held,  that  the  buildings  were  not  occupied. 
That  occupancy  as  applied  to  such  buildings  implies  an 


that 


i 


VACANT  OR  UNOCCUPIED. 


actual  use  of  the  house  as  a  dwelling  place,  and  such  use 
of  the  barn  as  is  ordinarily  incident  to  a  barn  belonging 
to  an  occupied  house,  or  at  least  something  more  than  a 
use  of  it  for  mere  storage.  Ashworth  v.  Builders'  Mut. 
Ins.  Co.  112  Mass.  422.     1873. 

§  5.  The  fact  that  assured  stated  to  the  agent  that 
she  would  leave  the  premises  temporarily  does  not  prevent 
a  forfeiture  under  condition  in  policy  providing  that  if 
premises  should  become  unoccupied  it  should  be  void, 
^tna  Ins.  Co.  v.  Burns,  5  Ins.  L.  J.  69.     1874.    Ky. 

§  6.  Vacancy  of  a  part  of  the  property  insured  does 
not  avoid  the  insurance  ;  if  it  increases  the  risk  it  may  do 
so,  but  the  burden  of  proof  rests  upon  the  company. 
Vryan  v.  Peabody  Ins.  Co.  8  W.  Va.  605.     187r). 

§  7.  Policy  provided  that  "if  the  above-mentioned 
preuiises  shall  become  vacant  or  unoccupied  and  so  remain 
with  the  knowledge  of  the  assured  without  notice  and 
consent  in  writing,"  it  should  be  void.  At  time  of  fire 
premises  had  been  vacated  by  the  tenant,  and  had  been 
unoccupied  about  thirty-three  days  with  the  knowledge  of 
the  assured,  and  without  notice  to  or  consent  of  the  com- 
pany. During  all  this  time  assured  was  endeavoring  to 
obtain  a  tenant.  Ildd,  that  the  words  "  and  so  remain  " 
qualified  the  condition  which  had  no  application  to  a  taii- 
j)orary  vacancy  caused  by  a  change  of  tenants.  Kelley  v. 
Home  Ins.  Co.  3  Ins.  L.  J.  134.  1875.  U.  S.  Circuit, 
Kans. 

§  8.  Tenant  in  possession  removed  from  the  house  in 
question  about  two  months  prior  to  the  fire.  He  notified 
the  assured  who  requested  him  to  lease  to  some  one  else, 
but  afterward  countermanded  this  direction,  and  property 
remained  unoccupied  until  the  fire.  The  tenant  retained 
the  key  for  purpose  of  delivery  to  assured  on  his  return 
from  another  State.  There  was  a  table,  crib,  and  a  straw 
tick  in  house  at  time  it  was  burnt.  IMd.  that  house  was 
"vacant  and  unoccupied  and  that  policy  was  void." 
American  Ins.  Co.  v.  Padfield,  78  111.  167.     1875. 


f»l| 


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330 


VACANT  OK  UNOCCUPIED. 


§  9.  Policy  provided  that  "  in  case  the  house  be  left 
unoccupied  without  giving  immediate  notice  to  the  com- 
pany "  it  should  be  void.  Assured  left  the  house  Jan.  15, 
1871,  and  thereafter  boarded  twelve  miles  distant  until 
March  30,  1871,  when  fire  occurred.  During  this  interval 
the  house  was  not  inhaVnted  by  any  human  being,  except 
one  night  when  plaintiff  remained  there.  All  the  house- 
hold goods  and  effects  were  left  in  the  house  and  so  re- 
mained until  the  fire.  Plaintiff  visited  the  house  occa- 
sionally and  maintained  a  general  oversight  over  the  prop- 
erty. Held,  that  occupation  of  a  dwelling-house  is  living 
in  it,  not  mere  supervision  over  it,  that  there  could  not  be 
a  cessation  of  occupancy  for  any  considerable  time  and 
that  under  facts  of  this  case  plaintiff  could  not  recover. 
Paine  v.  Agricultural  Ins.  Co.  5  T.  «fe  C.  619.     1875. 

§  10,  Policy  contained  this  provision:  "If  the  dwell- 
ing house  hereby  insured  becomes  vacated  by  the  removal 
of  ilie  owner  or  occupant^  it  would  be  void  unless  written 
consent  was  obtained.  The  absence  of  assured  and  his 
family  was  for  a  considerable  period  but  was  temporary 
in  its  nature  and  for  a  special  purpose.  There  was  evi- 
dence that  he  still  retained  the  house  as  his  residence  and 
left  his  furniture  and  clothing  of  his  family  there ;  that 
during  this  absence  his  wife  took  care  of  the  house,  going 
there  every  week  to  cleanse  it  and  from  time  to  time  ob- 
tain such  articles  as  were  required  for  use,  and  it  was  the 
intention  to  return  as  soon  as  the  assured  returned  from 
his  business  trip,  the  cause  of  the  absence.  Ileld^  that  it 
should  have  been  left  to  jury  to  determine  whether  house 
had  been  vacated  by  removal ;  the  words  of  condition 
had  reference  to  a  permanent  removal  and  entire  abandon- 
ment as  place  of  residence.  Cummins  v.  Agricultural 
Ins.  Co.  67  N.  Y.  260.     1876.     llev'g  5  Hun,  554. 

§  11.  Policy  provided  that  if  the  premises  should  be- 
come vacated  by  the  removal  of  the  owner  or  occupant 
without  notice  or  consent  it  should  be  void.  Building 
was  occupied  by  a  tenant  of  assured  and  rent  had  been 
settled  for  up  to  May,  1872.  The  tenant  left  in  July, 
1871,  and  went  to  another  place,  his  family  having  left  a 


VACANT  OR  UNOCCUPIED. 


331 


short  time  previous.  The  wearing  apparel  of  the  tenant 
and  his  family  had  all  been  taken  away  and  a  portion  of 
what  little  furniture  he  possessed.  He  intended  to  return 
the  next  spring  or  earlier  if  business  should  be  dull  at 
the  place  where  he  went.  No  person  lived  in  the  build- 
ing after  he  left.  Fire  occurred  October  30th,  1871,  up 
to  which  time  he  had  not  decided  to  return  at  any  definite 
time.  Neither  the  assured  nor  the  defendant  had  any 
notice  that  the  tenant  had  vacated  the  premises  until  after 
the  fire.  Held^  that  the  premises  were  vacated  within  the 
meaning  of  the  policy  and  that  the  neglect  of  the  plaintift' 
to  give  notice  to  the  company  could  not  be  construed  as  a 
mistake  under  Gen.  Stats,  ch.  157,  sec.  2.  Sleeper  v.  Ins. 
Co.  56  N.  H.  401.  1876.  Overruling  Chamberlain  v. 
Ina  Co.  55  N.  H.  249.  1875.  And  see  Hill  v.  Ins.  Co.  6 
Ins.  L.  J.  314.     1«77. 

§  12.  Policy  provided  that  company  should  not  be 
liable  for  any  loss  which  may  happen  while  the  house  is 
"left  without  an  occupant  or  person  actually  residing 
therein ;"  but  that  a  temporary  absence  of  the  members 
of  his  family,  none  of  the  household  fixtures  being  re- 
moved, should  not  be  construed  as  non-occupancy.  It  ap- 
peared that  the  house  insured  was  in  possession  of  a  ten- 
ant ;  that  the  fire  took  place  on  the  10th  of  September, 
1875,  but  that  the  tenant  did  not  reside,  sleep  or  eat  on 
the  premises  for  6  or  8  days  before  the  fire,  nor  did  any 
other  person.  The  goods  of  the  tensnt  were  removed 
about  forty-eight  hours  before  the  fire.  The  assured  was 
not  guilty  of  any  personal  default ;  he  lived  7  miles  from 
the  house  and  was  not  aware  that  the  tenant  had  ceased 
personally  to  occupy.  Tenant  held  the  premises  by  the 
month  ;  he  was  in  arrears  for  rent  and  his  goods  distrained. 
The  month  did  not  e:  pire  until  the  24th  of  September. 
The  assured  did  not  suppose  he  would  quit  the  premises 
before  that  day  and  had  a  person  ready  to  take  possession 
as  soon  as  the  tenant  left.  Jleld^  thei'e  was  a  breach  of 
the  condition,  and  the  plaintiff  could  not  recover.  In 
such  a  case  the  question  of  increase  of  risk  is  immaterial. 
Abrahams  v.  Agricultural  Ins.  Co.  40  Up.  Can.  Q.  B.  175. 
1876. 


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VACANT  OR  UNOCCUPIED. 


§  13.  When  a  company  receives  a  fee  and  executes  an 
assent  to  a  transfer  or  assignment  through  a  local  agent, 
assured  is  warranted  in  assuming  that  notice  of  a  vacancy 
to  such  local  agent  is  sufficient.  Williams  v.  Canada  Mut. 
Ins.  Co.  27  Up.  Can.  C.  P.  119.     187G. 

§  14.  A  building  does  not  become  vacant  or  unoccu- 
pied if  a  person  retains  a  room  in  which  he  is  accustomed 
to  sleep,  taking  his  meals  elsewhere.  Hartford  Fire  Ins. 
Co.  V.  Smith,  3  Col.  422.     1877. 

§  15.  Under  a  clause  providing  that  if  any  change 
should  occur  affecting  the  occupancy  of  the  property 
whereby  risk  should  be  increased,  the  same  should  be 
made  known  to  the  company  and  policy  canceled  or  a  cor- 
responding increased  premium  paid  at  the  option  of  the 
company,  it  is  proper  for  the  court  to  refuse  to  charge  the 
jury  that  leaving  the  premises  vacant  without  notice 
avoided  the  policy,  and  to  charge  them  that  it  would  not 
do  so  unless  done  in  bad  faith  and  with  a  design  to  expos- 
ing the  building  to  extra  hazard.  Ilesidence  Fire  Ins.  Co. 
V.  Hannawold,  37  Mich.  103.     1877. 

§  16.  Policy  contained  provision  that  "  if  house  shall 
remain  vacant  or  unoccupied  for  the  space  of  ten  days 
without  written  notice  and  consent,"  it  should  be  void. 
The  trial  judge  charged  the  jury  that  if  the  house  had  not 
been  used  as  a  dwelling  place  by  some  one  within  ten  days 
of  the  fire,  policy  would  be  void.  Also  that  the  facts  that 
the  tenant's  furniture,  or  some  of  it,  remained  in  the 
house,  and  the  key  had  not  been  surrendered  to  the  land- 
lord until  within  less  than  ten  days  of  the  fire,  would  not 
be  an  occupancy  of  the  premises,  if  the  tenant  and  his 
family  had  moved  into  another  house,  where  they  slept 
and  took  their  meals.  Held,  no  error.  Corrigan  v.  Con- 
necticut Ins.  Co.  122  Mass.  298.     1877. 

§  1 7.  Policy  provided  that  if  building  should  be  va- 
cated by  owner  or  occupant,  notice  should  be  given  to 
company,  stating  particulars  and  length  of  time.  Assured 
notified  agent  that  house  was  to  be  vacant  about  four 
weeks  and   stated   that   "  they   would   not    move  their 


VACANT  OR  UNOCCUPIED. 


333 


things."  Assured  did  in  fact  substantially  remove  all  his 
household  property.  Held^  that  defendant  having  no 
notice  of  removal  of  the  property,  plaintiff  could  not  re- 
cover. Hill  V.  Equitable  Ins.  Co.  6  Ins.  L.  J.  314.  1877. 
N.H. 

§  18.  Policy  provided  that  if  "premises  should  be- 
come vacant  or  unoccupied  "  it  should  be  void.  Premises 
in  question  were  occupied  by  a  tenant  of  assured,  who 
moved  into  another  house  shortly  before  the  fire,  leaving 
some  of  his  furniture,  which  had  not  been  removed  at  time 
of  loss.  Court  charged  the  jury  that  "  if  the  vacancy  of 
the  building  was  not  within  the  means  or  control  of  the 
plaintiff"  he  could  recover.  Ileld^  no  error.  Atlantic  Ins. 
Co.  V.  Manning,  3  Col.  224.     1877. 

§  19.  Delays  and  interruptions  incident  to  the  busi- 
ness of  conductim?  a  saw-mill,  althouifh  involvinsr  a  tem- 
porary  discontinuance  of  the  active  use  of  the  mill  for 
sawing  purposes,  do  not  make  it  "  vacant  and  unoccupied  " 
within  meaning  of  the  policy.  Whitney  v.  Black  lliver 
Ins.  Co.  72  N.  Y.  117.     1878.    Affi'g  9  itun,  37. 

§  20.  A  tenant  having  removed  from  a  dwelling- 
house  a  day  before  it  was  destroyed  by  fire.  Held,  that 
whether  the  house  was  "occupied"  or  not  within  the 
meaning  of  the  policy,  a  proper  question  for  the  jury. 
Wait  v.  Agricultural  Ins.  Co.  13  Ilun,  r.71.     1878. 

§  21.  An  occasional  absence  for  a  single  night,  even 
though  it  should  so  chance  to  be  the  night  of  the  fire,  does 
not  make  a  house  vacant  or  unoccupied.  It'  there  is  any 
evidence  tending  to  show  that  the  house  was  occupied,  it 
is  error  to  take  the  case  from  the  jury.  Chandler  v.  Com- 
merce Fire  Ins.  Co.  88  Pa.  223.     1878. 

§  22.  Building  was  described  in  the  policy  as  a  "  ten 
tenement  frame  block."  There  did  not  appear  to  be  more 
than  one  building,  which  at  time  of  fire  was  fitted  up  for 
ten  tenements,  two  of  which  were  actually  occupied  by 
assured  and  his  family,  and  he  was  in  legal  possession  of 
the  whole  and  had  control  of  the  same.     Policy  contained 


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334 


VACANT  OR  UNOCCUriED. 


provision  that  it  should  be  void  "  whenever  a  building 
hereby  insured  shall  be  unoccupied."  Held,  that  a  tene- 
ment block  insured  as  a  single  building  could  not  be  re- 
garded as  unoccupied  with  two  of  the  tenements  in  actual 
use  and  occupation  as  residences.  Harrington  v.  Fitch- 
burg  Ins.  Co.   12-fc  Mass.  12G.     1878. 

§  23.  When  house  is  vacant  with  knowledge  and 
consent  of  agent  of  company,  and  policy  remains  in  his 
possession  until  after  the  fire,  when  it  is  delivered  to  the 
assured  who  had  no  knowledge  of  its  terms,  company  is 
estopped  from  availing  itself  of  condition  in  policy  as  to 
vacancy.  St  Paul  l^'ire  Ins.  Co.  v.  Wells,  89  111.  82. 
1878. 

§  24.  Premises  do  not  cease  to  be  occupied  when  as- 
sured sleeps  in  an  adjoining  house,  leaving  furniture  and 
wearing  apparel  in  former  to  which  he  was  accustomed  to 
return  daily.  Gibbs  v.  Continental  Ins.  Co.  13  Ilun,  611. 
1878. 

§  25.  Policy  provided  that  "so  long  as  property  in- 
sured should  be  unoccupied  it  would  cease  and  be  of  no 
force  or  effect."  Upon  the  trial  court  charged  jury  in  sub- 
stance that  a  few  days  vacancy  pending  a  change  of  ten- 
ants would  not  void  the  policy  in  case  of  loss.  Held,  error, 
that  the  contract  by  its  terms  was  suspended  during  such 
short  and  temporary  i)eriod  of  unoccupancy,  and  became 
operative  on  re-occupancy.  vEtna  Ins.  Co.  v.  Myers,  03 
Ind.  238.     1878. 

§  26.  Assured,  about  two  weeks  before  the  fire,  went 
to  another  place  to  reside  and  liv^ed  there  imtil  after  the 
fire.  A  car  load  of  furniture  was  shipped  to  the  new  dwell- 
ing place  and  there  was  about  $300  worth  of  furniture  left 
in  the  house.  Assured  left  instructions  with  an  agent  to 
sell  this  furniture  and  also  to  rent  the  house.  Another 
person  was  left  in  possession  witli  instructions  to  remain 
in  possession  and  sleep  in  the  house  until  it  was  rented. 
This  latter  person  left  the  house  three  or  four  days  before 
the  fire  occurred,  and  was  at  the  new  residence  of  the  as- 
sured when  the  fire  occurred.     lie  left  no  one  in  the  house, 


VACANT  OK  UNOCCUPIED. 


335 


building 
i  a  tene- 
>t  be  re- 
in actual 
V.  Fitch- 

idge  and 
s  in  his 

to  the 
ipany  is 
cy  as  to 

111.  82. 

vhen  as- 
iure  and 
;oraed  to 
un,  611. 

)erty  iu- 
36  of  no 
y  in  sub- 
3  of  ten- 
Id,  error, 
ing  such 
became 
[yers,  63 

re,  went 
fter  the 
w  dwell- 
ture  left 
igent  to 
Another 
remain 
rented. 
s  before 
'  the  as- 
e  house, 


but  gave  the  keys  to  another  agent  with  instructions  to 
take  charge  of  the  house  and  rent  it  if  he  could  before  he 
returned.  Policy  contained  condition  if  house  should  be- 
come unoccupied  it  should  be  void.  Held,  that  the  house 
was  unoccupied  within  the  meaning  of  the  policy.  Cook 
V.  Continental  Ins.  Co.  70  Mo.  610.     1879. 

§  27.  Tenant  of  assured  moved  out  of  the  building 
seventeen  days  before  the  fire,  and  it  remained  tenantless 
and  unoccupied  until  it  was  destroyed.  Policy  provided 
that  "  if  premises  should  become  vacant  or  unoccupied,  and 
so  remain,  without  consent  in  writing,  &c.,"  it  should  be 
void.  Court  was  requested  to  charge  jury  that  "  if  they 
found  from  the  evidence  that  premises  were  vacant  and 
unoccupied  at  time  of  fire  without  notice  to  defendant,  ' 
plaintiff  could  not  recover,"  which  was  refused.  Jury  were 
then  charged  that  "  to  avoid  policy  building  must  have 
been  vacant  for  an  unreasonable  length  of  time  as  to  ma- 
terially increase  the  risk,  and  the  question  of  an  unreason- 
able length  of  time  was  for  them  to  determine."  Held, 
error;  that  instruction  asked  by  defendant  should  have 
been  given  to  the  jury.  Dennison  v.  Phcenix  Ins.  Co.  52 
Iowa,  457.     1879. 

§  28.  A  boat  which  has  been  left  lying  on  the  beach 
without  any  occupants,  her  furniture  removed,  and  no  use 
made  of  her,  is  "  unoccupied."  Ileid  v.  Lancaster  Ins.  Co. 
19  Hun,  284.     1879. 

§  29.  AVhen  policy  provides  that  it  should  be  null 
and  void,  if  without  written  consent,  the  house  insured 
should  become  vacant  by  removal  of  owner  or  occupant, 
or  cease  to  be  occupied  in  the  usual  or  ordinary  manner 
that  dwelling-houses  are  occupied,  Held,  that  the  assured 
was  not  relieved  from  the  effect  of  this  condition  by  show- 
ing that  his  tenant  left  the  premises  without  his  knowledge 
and  consent,  and  that  as  soon  as  he  discovered  the  fact  he 
endeavored  to  procure  a  new  one.  McClure  v.  Watertown 
Fire  Ins.  Co.  90  Pa.  277.     1879. 

§  30.  Semhle  that  the  assured  is  not  required  to  give 
notice  of  a  temporary  vacancy,  such  as  is  incidental  to  a 


'  1^1 

'11 

1  ?- 1 

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i 


I 


I     n 


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336 


VACANT  OR  UNOCCUPIED. 


F  ^! 


ir' 


change   of  tenants. 
1879. 


Alston  V.  Ins.  Co.  80   N.   C.   326. 


§  31.  When  policy  provides  that  it  shall  be  void  in 
case  the  premises  insured  shall  become  vacant  or  unoccu- 
pied, the  question  of  increase  of  risk  is  immaterinl  it 
is  error  for  the  court  to  charge  the  jury  in  such  a  ciise  that 
they  could  not  find  for  defendant  unless  they  found  that 
the  risk  was  increased  by  the  vacancy.  Ins,  Co.  v.  Lonsr, 
51  Tex.  89.     1879. 

§  32.  Assured  was  accustomed  to  occupying  house 
insured  as  a  summer  residence,  and  in  the  early  part  of  De- 
cember of  each  year  family  would  leave  it  for  the  win^  i 
and  occupy  rooms  in  another  place.  The  house  was  quii;' 
expensively  furnished.  When  the  family  moved,  in  De- 
cember, 1876,  for  the  winter,  this  furniture  was  left  in  the 
house  in  the  same  situation  as  when  in  use,  and  the  house, 
when  no  member  of  the  family  was  there, remained  locked 
up,  no  custodian  being  left  in  possession.  It  appeared  that 
assured,  during  the  entire  winter,  visited  the  premises  as 
often  as  once  a  month,  and  that  her  husband  during  tlie 
whole  time,  with  the  exception  of  a  few  days  Avhen  he  was 
absent  in  New  York,  visited  the  house  several  times  a  we(;k 
and  slept  there  from  two  to  five  nights  each  week.  IL^ 
prepared  and  took  his  meals  in  the  house,  and  on  several 
occasions  he  received  and  entertained  his  friends  tuerc. 
The  last  of  these  occasions  was  Sunday,  the  second  d:.j 
before  the  fire.  On  that  day  he  spent  nearly  the  entire 
day  and  evening  in  the  house  with  a  number  of  his  asso- 
ciates. Held,  that  the  house  during  none  of  this  period 
was  unoccupied.  The  building  being  insured  as  a  dwell- 
ing, the  occupancy  stipulated  for  must  be  deemed  to  be 
such  as  properly  pertained  to  a  building  of  that  char;i«;tor ; 
that  the  assured  was  only  bound  to  maintain  such  occu- 
pancy as  pertained  to  the  ordinary  use  of  the  building  in 
the  luanncjr  and  for  the  purposes  for  which  it  was  designed 
to  be  used  ;  and  the  fact  that  the  building  had  been  used 
previously  for  a  summer  residence  was  a  circumstance  of 
considerable  signiticance,  and  that  the  question  of  occu- 
pancy or  non-occupancy  was  propeily  left  to  the  jury. 
Western  Assur.  Co,  v.  Mason,  f)  Bradwell,  141.     1879, 


.   C.   326. 
void  in 

!ll,  :i       '.    It 

ouse  that 

und  that 

V.  Long, 

ng  house 
art  of  De- 
le win^.cr 
was  qiiUe 
d,  in  De- 
eft  in  the 
lie  liouso, 
sd  locked 
sared  tliat 
3Uiises  as 
ai'ing  the 
:^n  lie  was 
es  a  week 
eek.  He 
n  several 
ds  til  ere. 
?oud  d'.y 
lie  entire 
his  asso- 
is  period 
!  a  dwell- 
ed to  be 
haraotor ; 
ich  occii- 
lilding  in 
desiij-iied 
een  used 
stance  of 
of  occu- 
the  jury. 
187U. 


VACANT  OR  UKOCCUPIED. 


337 


§  33.  Assured  being  required  to  give  notice  to  the 
company  when  house  becomes  unoccupied,  is  bound  to  do 
so  within  a  reasonable  length  of  time,  and  a  failure  to  give 
such  notice  for  six  weeks,  when  the  company's  principal 
office  is  but  a  few  miles  distant,  cannot  ])e  regarded  as  rea- 
sonable time.     Alston  v.  Ins.  Co.  80  N.  C.  320.     1879. 

§  34.  Assured  had  determined  to  leave  the  premises 
and  move  to  another  State,  and  for  several  days  before  the 
fire  was  actively  engaged  in  making  preparations  to  do  so. 
He  had  alrendy  rented  premises  to  anotht^r  who  was  to 
have  taken  possession  on  Saturday,  but  was  prevented 
from  doing  so  by  rain.  The  day  before  assured  sold  such 
articles  as  he  did  not  wish  to  take  with  him,  and  in  the 
evening  of  same  day  his  family  left  the  premises  without 
any  intention  of  returning,  at  least  until  after  assured's  re- 
turn from  Nevada,  where  he  subsequently  went.  Assured 
lemained  in  premises  Friday  and  Friday  night,  having  re- 
tained bed,  bedding,  and  some  other  articles  of  little  value, 
his  family  in  meantime  having  stopped  in  a  neighboring 
city,  waiting  until  he  could  perfect  his  arrangements  for 
leaving.  He  also  remained  on  premises  the  next  day  until 
about  nine  o'clock  in  the  evening  when  he  went  to  the  city 
where  he  spent  balance  of  the  night.  On  Sunday  he  re- 
turned to  the  premises  and  remained  there  until  seven 
o'clock  in  the  evening,  when  he  went  to  the  city  and  spent 
night  there,  leaving  his  bed,  bedding,  cfec,  on  the  premises. 
That  night  hre  occurred.  Held,  that  premises  were  not 
vacant  and  unoccupied.  Question  depends  upon  intent 
and  proper  to  submit  to  jurv.  Phtenix  Ins.  Co.  v.  Tucker, 
92  111.  04.     187t>. 

ij  35.  School-house  insured  November  21,  1871,  for 
five  years.  After  Aj)ril,  lili),  no  school  was  held,  furni- 
ture was  removed,  and  l»uilding  was  then  rented  and  used 
as  a  dwelling.  Last  occupied  as  a  dwelling  April,  187G, 
from  Avhich  time  to  the  fire,  October  14,  1870,  house  re- 
mained vacant  and  unoccupied.  Plaintiff  contended  that 
company  insuring  }>roperty  -is  a  school-house  must  be  as- 
sumed to  have  intended  that  the  building  should  be  va- 
cant as  school-houses  are  occasionally,  especially  daring 

Vol.  II. -'22 


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fc 


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I  I  ■  li 


338 


VACANT   OR  UNOCCUPIED. 


vacation.     Held,  that  policy  was  void.     Aiiiei'ican  Iiis.  Co. 
V.  Foster,  92  111.  335.     1879. 

^  36.  A  company  does  not  waive  condition  In  regard 
to  occupancy  by  recjuiring  a^^sured  to  furni;sl»  proofs  of 
loss.  Fitch [)atrick  v.  ILiwkeyo  Ins.  Co.  53  Iowa,  :i35. 
1880. 

§  37.  Policy  provided  that  "  if  the  premises  iiiiured 
shall,  at  any  time  during  the  life  of  this  policy,  become 
vacant,  by  the  removal  of  the  owner  or  occu})ant,  without 
immediate  notice  to  tliis  company  and  indorsement  made 
on  the  policy,  this  insurance  shall  be  void  and  of  no  eft'ect." 
It  also  contained  provision  for  cancellation  at  option  of 
com})any  by  giving  notice  in  writing  and  payment  of  un- 
earned premium.  Jleld,  tliat  vacancy  did  not  of  itself 
avoid  the  policy,  and  that  the  object  of  requiring  notice 
was  accomplished  by  receipt  of  the  notice.  Company  hav- 
ing thus  acquired  knowledge  of  vacancy  may,  in  its  dis- 
cretion, terminate  the  insurance  only  by  written  notice 
and  payment  of  the  unearned  premium.  Wakefield  v. 
Orient  Ins.  Co.  50  Wis.  532.     1 880. 

§  38.  Work,  at  time  of  fire,  had  been  stopped  for  five 
days,  and  how  soon  it  would  have  been  renewed  was  \\\\- 
certain.  Mill  continued  to  be  used  for  storage  and  deliv- 
ery of  goods,  requiring  daily  visits  of  one  or  two  person;^. 
Jield,  not  to  be  "unoccupied;"  that  such  term  in  the  ])ol- 
icy  liad  no  inference  to  a  temporarv  suspension  of  work  in 
a  mill.  All>ion  Lead  Works  v.  Williamsburg  City  Ins. 
Co.  9  Ins.  L.  J.  435.     1880.     U.  S.  Circuit,  Mass. 

§  39.  Family  leaving  house  on  e.xcrrsions,  visits,  or 
on  other  tenqjorary  occasions,  tin're  hein:..;  n;)  intoiitioii  of 
leaving  it,  do  not  cease  to  o^nnipv  it.  S'cupetzki  v.  'J'rans- 
atlantic  Ins.  Co.  9  Ins.  L.  J.  521."     1880.     Mich. 

§  40.  Policy  insured  building,  <Icsrril)in;j'  it  as  "  framo 
dwelling-house,  o('cu})iod  as  a  hoardiuLV-housc.  Occiq:iai)cy, 
tenant."  Tenant  left  the  ])i'eniisos  during  the  continuance 
of  the  policy.  The  assured  notified  company's  ageiii;  that 
the  house  would  bo  vacant  until  A|)rilj  asking  for  consent. 


VACANT  OR  UNOCCUPIED. 


330 


Agent  promised  that  it  would  be  all  right.  Policy  con- 
tained a  condition  that  if  risk  should  be  increased  by  any 
means  beyond  the  control  of  the  insured,  he  should  inform 
the  company  thereof  as  soon  as  it  comes  to  his  knowledge, 
and  whether  so  informed  or  not,  the  company  may  raise 
the  rate  of  premium  or  terminate  the  insurance,  and  that, 
if  the  risk  is  increased  within  his  knowledge  or  control 
without  written  consent  of  the  company,  that  it  should  be 
void.  There  was  no  condition  providing  that  a  vacancy 
of  the  building  should  affect  the  insurance.  IleUl^  that 
the  temporary  vacancy  arising  from  the  leaving  of  a  ten- 
ant was  to  be  deemed  as  a  part  of  the  risk,  and  that  it 
was  sufficient  for  the  assured  to  give  notice  of  the  fact  to 
the  company,  and  that  the  question  of  increase  of  risk 
should  be  submitted  to  the  jury.  Lockwood  v.  Middlesex 
Mut.  Ins.  Co.  47  Conn.  553.     1880. 

§  41.  Policy  contained  condition  that  it  should  be 
void  if  the  premises  should  become  "  vacant  and  unoccu- 
pied." The  dwelling  insured  was  the  summer  residence 
of  the  assured.  Fire  occurred  in  April,  1877.  Assured 
resided  in  the  house  during  summer  and  fall  of  1870,  and 
removed  therefrom  in  November  of  that  year  to  the  city 
of  New  York,  intending  to  return  about  the  middle  of 
May.  He  left  all  his  furniture  in  the  house,  which  was 
furnished  throughout,  and  left  the  house  in  charge  of  a 
person  who  lived  near.  Held,  that  house  must  not  only 
be  unoccupied,  but  also  vacant  to  render  it  void ;  and  that 
it  was  not  vacant  within  meaning  of  the  policy.  Her- 
mann v.  Merchants'  Ins.  Co.  81  N.  Y.  184.     1880. 

§  42.  A  vacant  house  is  literally  nii  empty  house. 
One  or  more  persons  may  live  in  a  house,  and  iti  either 
case  it  is  occupied.  They  may  have  much  or  little  furni- 
ture, and  in  neither  event  is  it  vacant.  The  question  as 
to  whether  a  house  is  "  vacant  and  unoccupied"  is  proper 
to  be  determined  by  the  jury.  Woodrulf  v.  Imperial  Fire 
Ins.  Co.  83  N.  Y.  133.     IS  so. 

§  43,  Policy  contained  clause  that  it  should  become 
void  in  event  of  the  house  being  vacant  and  unoccupied. 
Court  charged  the  jury  "  If  parties  moving  out  and  others 


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340 


VACANT  OR  UNOCCUPIED. 


moving  in,  and  the  necessary  time  for  siicli  change  of  situ- 
ation occurs  between  the  moving  out  and  the  moving  in, 
unless  such  time  is  unreasonable,  the  policy  would  not  be- 
come invalidated,"  and  left  it  to  the  jury  to  say  what 
Avould  be  a  reasonable  time.  Approved.  Woodruft'  v. 
Imperial  Fire  Ins.  Co.  83  N.  Y.  138.     1880. 

§  44.  Policy  provided  that  a  family  should  live  in  the 
hotel  insured  throughout  the  year.  At  close  of  the  sum- 
mer  season  assured,  with  his  wife  and  sons,  left  the  hotel, 
leaving  there  a  number  of  their  employees,  at  work  about 
the  premises  and  in  charge  of  the  property,  under  direc- 
tion and  management  of  the  assured.  All  of  these  em- 
ployees ate  at  another  hotel  in  the  vicinity,  and  most  of 
them  slept  there.  Two  of  them  roomed  and  slept  in  hotel 
insured,  having  tiieir  clothing  there,  and  working  (mtside 
and  about  the  building,  going  in  and  out  several  times  a 
day.  Both  were  mi  build  inq;  at  time  of  fire,  and  escaped 
through  a  window.  Jlehl,  tliat  whether  a  house  is  or  is 
not  occupied  by  a  family  is  a  question  of  fact  to  be  deter- 
mined by  a  jury.  That  a  family  is  a  number  of  persons 
who  live  in  one  house  and  under  on(;  management  or  head. 
No  specific  number  is  required  to  constitute  a  family.  It 
is  not  necessary  they  should  eat  in  the  house  where  tliey 
live.  Nor  is  it  necessaiy  that  they  should  be  enq)loyod 
in  the  house  or  about  it,  nor  is  it  material  that  they  are 
hired.  The  precise  question  is,  are  they  living  there  to- 
gether under  one  head  or  manager  i  This  is  one  of  fact, 
not  of  law.  The  evidence  sustaining  a  verdict  for  ])laintitf, 
judgment  oidered  accordinglv.  Poor  v.  Ilndison  Ins.  Co. 
9  Ins.  L.  J.  428.     1880.     U.  S.  Circuit,  N.  II. 

§  45.  Dwelling-house  insured  Avas  used  as  a  country 
residence.  Assured  and  his  wife  wei'o  in  the  habit  of 
visitino:  it  every  two  weeks,  and  a  farmer  and  menib(;rs  of 
his  family  living  on  the  grounds  made  weekly  tours  of  in- 
spection, and  su[)ervised  it  from  his  oxvn  house.  JJehJ^ 
that  the  house  was  unoccui)lt'd,  and  that  although  the 
farm  j)i-emises  and  som(>  of  the  buildings  were  in  actual 
occupation,  their  use  did  not  extend  to  and  take  in  the 
dwelling  burned.     Ilerni/mn  v.  Adriatic  Ins.  Co.  12  N.  Y. 


ge  of  situ- 
iioving  in, 
lid  not  })e- 
say  what 
oodruff  V. 


live  in  tlie 
f  the  sum- 
the  hotel, 
ork  about 
ider  diiec- 
these  em- 
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pt  in  hotel 
Qg  outside 
al  times  a 
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^e  is  or  is 
be  detor- 
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rit  or  head, 
amily.  It 
^'liere  tlioy 
em[)loyod 
t  they  are 
<;  there  to- 
ne of  fact, 
'r  jdaintiff, 
a  Ins.  Co. 


a  couiitry 
'  liabit  of 
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i3urs  of  in- 
se.  IMI, 
liouQ-h  the 
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ake  in  the 
.  12N.Y. 


VALUED  POLICY. 


34L 


Week.  Dig.  293.     1881.    N.  Y.  Ct.  App.    Rev'g  13  Jones 
&  Sp.  394. 

§  46.  Policy  provided,  that,  "  if  the  premises  hereby 
insured  shall  become  vacant  or  unoccupied,  or  if  the  prop- 
erty insured  be  a  mill  or  factory,  and  shall  cease  to  be  op- 
erated, and  so  remain  for  a  period  of  more  than  fifteen 
days  without  notice  to  the  company  and  consent  indorsed 
thereon,  in  every  such  case  the  policy  shall  be  void." 
Held,  that  by  construction  policy  is  to  be  void  if  the 
premises  (a  dwelling-house  in  this  case)  become  vacant 
or  unoccupied,  and  so  remains  for  a  period  of  more  than 
fifteen  days  without  notice.  Miaghan  v.  Hartford  Fire 
Ins.  Co.  24  Hun,  58.     1881. 

See  Alienation,  §  25.  Estoppel,  16,  17,  37.  Evidence,  86.  Increase  of 
Risk,  1,  3,  4,  16,  19,  25.  Use  and  Occupation,  19.  Waiver,  11,  23,  24,  37. 
Warranty  and  Representation,  50,  74,  100. 


VALUED    POLICY. 


§  1.  Policy  insured  $2,500  on  oil  paintings,  as  per 
schedule,  &c.  The  schedule  referred  to  was  made  up  and 
furnished  to  defendant's  agent  .after  the  application  and 
date  of  policy,  enumerating  over  one  hundred  paintings,  as 
follows : 

President  Taylor  and  Cabinet      .     .  $1,000 
<*  Harrison  "       "         .     .        1,000 

"  Washington      "...     1,000 

Ac. 
Ifdd,  not  a  valued  policy.     Luce  v.  Springfield  Ins.  Co.  2 
Ins.  L.  J.  443.     1873.     Xj.  S.  Circuit,  Mich. 

§  2.  In  an  action  upon  a  valued  policy  plaiutitf  is  not 
required  to  prove  his  interest  in  subject  insured  by  a  plea 
of  the  general  issue.  Koos  v.  Merchants'  Mut.  Ins.  Co.  27 
La.  Ann.  409.     1875. 


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342 


WAIVER. 


§  3.  When  statute  provides  that  the  amount  of  insur- 
ance written  in  the  policy  shall  be  taken  and  deenit  d  the 
true  value  of  the  property  at  the  time  of  the  loss,  and  that 
it  shall  be  the  measure  of  damages,  such  an  act  is  founded 
upon  public  policy,  and  its  provisions  cannot  be  waived 
even  by  express  contract,  hence  the  stipulation  in  the  con- 
tract providing  for  another  measure  of  damages  is  inoper- 
ative.   Reilley  v.  Franklin  Ins.  Co.  4.*i  Wis.  449.     1877. 

§  4.  Valuation  agreed  upon,  and  for  which  insurance 
is  issued,  though  it  exceeds  the  real  value  of  the  property, 
if  made  in  good  faith  and  without  fraud,  is  conclusive  be- 
tween the  parties.  Harrington  v.  Fitch  burg  Ins.  Co.  124 
Mass.  126.     1878. 


WAIVER. 

§  1.  The  mere  fact  that  an  agent  of  the  company  has 
given  evidence  as  to  the  origin  and  circumstance  of  the 
fire  under  legal  proceedings  instituted  for  that  purpose,  is 
not  evidence  of  waiver  of  objection  in  regard  to  assured's 
having  made  false  statements  in  proofs  of  loss.  Casiunan 
V.  Lond.  &  Liv.  Fire  Ins.  Co.  5  Allen,  N.  B.  246.     1 862. 

§  2.  Renewal  by  agent,  with  knowledge  of  existence 
of  other  insurance,  waives  indorsement  upon  the  policy. 
Carroll  v.  Charter  Oak  Ins.  Co.  1  Abb.  Ct.  App.  Dec.  810. 
1868. 

§  3.  Assured's  attorney  met  agent  of  the  conii)any  on 
the  street  and  said  that  proofs  were  ready  except  certifi- 
cate, which  he  said  it  was  doubtful  whetiier  he  would  get 
in  time,  to  whicii  the  agent  replied,  \\,  was  not  material, 
and  to  procure  a  certificate  as  soon  as  he  could.  Jleld, 
evidence  of  waiver.  Crozier  v.  Phcenix  Ins.  Co.  2  Ilannay, 
N.  B.  200.     1870. 


WAIVER. 


343 


§  4.  WLen  no  particular  form  of  approval  to  a  trans- 
fer IS  required,  knowledge  by  company  of  the  facts  and 
retention  of  the  ])reniiuni,  with  such  knowledge,  is  evi- 
dence from  whicli  jury  may  find  that  assent  was  given. 
Hendriekson  v.  Queen  Ins.  Co.  30  Up.  Can.  Q.  B.  108. 
1870. 

^  5.  A  local  agent  waives  conditions  requiring  proofs 
of  loss  and  suit  to  he  brought  within  limited  time  by 
stating  that  the  former  are  "  all  right,"  and  loss  would 
soon  be  paid,     Ide  v.  Pheenix  Ins.  Co.  2  Biss.  333.     1870. 

§  6.  There  can  be  no  waiver  where  the  act  or  omis- 
sion to  act  or  statement  oq  part  of  the  company  is  pro- 
cured by  tiie  false  reprejjentation  of  the  assured.  Taylor 
V.  Ins.  Co.  51  N.  II.  50.     1871. 

§  7.  A  condition  of  forfeiture  may  be  waived  by  any 
act  from  which  consent  of  company  may  be  inferred. 
Shearman  v.  Niagara  Fire  Ins.  Co.  46  N.  Y.  o26.     1871. 

§  8.  Agent  proniising,  on  being  notified  of  a  transfer, 
that  lie  would  indorse  consent  on  the  policy  on  its  produc- 
tion, does  not  operate  as  a  waiver.  Equitable  Ins.  Co.  v. 
Cooper,  (U)  111.  509.     1871. 

§  0.  Policy  j>rovided  that  "  nothing  but  a  distinct, 
specific,  agreement,  clearly  expressed  and  indorsed,  shall 
operate  as  a  waiver  of  any  printed  or  written  condition, 
warranty  or  restriction  therein."  Company  relied  upon 
tliis  clause  to  defeat  a  claim  of  waiver  in  connection  with 
proofs.  Ifeld,  that  it  referred  to  those  conditions  and 
provisions  of  the  policy  which  enter  into  and  form  a 
part  of  the  contract  of  insurance  and  are  essential  to  make 
it  a  binding  contract,  and  which  are  properly  designated 
as  conditions;  and  tliat  it  has  no  reference  to  those  stipu- 
lations whidi  are  to  be  perfoi'med  after  a  loss  has  occur- 
red. Franklin  Fire  Ins.  Co.  v.  Chicago  Ice  Co.  36  Md. 
102.  187-2.  s.  i>.  Rokes  v.  Amazon  liis.  Co.  51  Md.  512. 
1879.  And  see  Walsh  v.  Hartford  Ins.  Co.  73  N.  Y.  5. 
1878.  Hartford  Ins.  Co.  v.  Webster,  69  111.  392.  1873. 
Meyers  v.  Germania  Ins.  Co.  27  La.  Ann.  63.     1875. 


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WAIVER. 


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10.  A  broker  cannot  as  agent  of  the  company  waive 
condition  requiring  prepayment  of  the  premium.  Mar- 
land  V.  Royal  Ins.  Co.  71  Pa.  393.     1872. 

§  11.  If  agent  witli  knowledge  that  the  building  is 
imoccupied  issues  a  policy  with  a  clause  providing  that  it 
is  void  if  vacant,  there  is  a  waiver  of  any  written  or 
printed  condition  respecting  the  occupation  of  the  prem- 
ises.    Deviue  v.  Home  Ins.  Co.  32  Wis.  471.     1873. 

§  12.  The  charging  of  the  premium  to  an  agent,  and 
the  agent's  agreement  to  give  time  for  its  payment,  and 
subsequent  payment  to  the  company,  constitute  a  waiver. 
Dayton  Ins.  Co.  v.  Kelley,  24  Ohio,  345.     1873. 

§  1 3.  Policy  contained  pro^ysion  that  "  the  assured 
hereby  covenants  that  the  representation  given  in  the  ap- 
plication  for  this  insurance  contains  a  just,  true  and  full 
exposition  of  all  the  facts  and  circumstances  in  regard  to 
the  condition,  situation,  value,  and  risk  of  the  property  in- 
sured, as  far  as  the  same  are  known  to  them  and  material 
to  the  risk,  and  that  if  any  material  fact  or  circumstance 
shall  not  have  been  fairly  represented,  policy  shall  be 
void."  Policy  was  issued  upon  a  printed  slip  describing 
the  property  without  requiring  any  representation  in  re- 
gard to  its  situation,  value  and  risk.  Held,  that  company 
must  be  deemed  to  have  waived  above  condition  and  could 
not  claim  that  policy  was  void  because  the  assured  did  not 
fully  disclose  situation  and  risk.  Commonwealth  v.  Hide 
and  Leather  Ins.  Co.  112  Mass.  136.     1873. 

§  14.  Company  by  demanding  from  the  assured  after 
a  loss  plans  and  specifications  of  the  building  destroyed 
with  knowledge  of  the  existence  of  other  insurance,  is 
estopped  from  msisting  upon  a  forfeiture  of  the  policy  on 
the  ground  of  other  insurance.  Such  an  act  must  be 
treated  as  an  election  on  the  part  of  the  company  to  treat 
the  policy  as  a  valid  and  subsisting  contract.  Webster  v. 
Phoenix  Ins.  Co.  36  Wis.  67.  1874.  8.  i>.  Titus  v.  Glen's 
Falls  Ins.  Co.  81  N.  Y.  410.     1880. 

§  15.  A  mortgagee  applied  to  an  agent  for  an  insur- 
ance upon  his  interest,  and  form  of  policy  was  left  to  lat- 


WAIVER. 


345 


ter.  It  was  issued  in  name  of  owner  loss  payable  to  the 
mortgagee  as  interest  might  appear.  Subsequently,  the 
mortgagee  acquired  the  title  by  foreclosure,  gave  notice  to 
the  agent  and  received  consent  "that  the  policy  might 
stand  as  security  for  plaintiff's  interest,"  the  agent  agree- 
ing that  the  proper  entries  would  be  made.  Policy  con- 
tained usual  condition  against  transfer  or  change  of  title. 
Held,  that  the  forfeiture  was  waived,  and  that  company 
was  estopped  after  a  loss  from  averring  want  of  considera- 
tion, and  also  from  insisting  upon  previous  forfeiture. 
Pratt  V.  N.  Y.  Central  Ins.  Co.  55  N.  Y.  505.  1874. 
Affi'g  64  Barb.  589. 

§  16.  Policy  provided  that  "there  shall  be  no  waiver 
or  evasion  of  any  of  the  terms  or  conditions  of  this  policy, 
and  no  agent  or  servant  of  this  company  has  any  right  or 
power  to  waive  or  to  dispense  with  any  of  the  terms  or 
conditions  of  insurance  as  printed  and  contained  in  the 
application  or  in  this  policy."  Whether  this  should  be 
construed  as  speaking  from  the  time  when  the  policy  is 
received  instead  of  being  made  to  operate  by  relation  from 
the  date  of  the  application  when  no  conditions  were 
brought  to  the  knowledge  of  the  assured  except  those 
which  were  made  a  part  of  the  application  itself  quei^y  ? 
Michigan  State  Ins.  Co.  v.  Lewis,  30  Mich.  41.     1874. 


§ 


17.     Waiver  is  a  question  of  fact  and  it  is  error  to 
refuse  to  submit  to  the  jury  where  there  is  contradictory 
testimony.     Underwood  v.  Farmers'  Joint  Stock  Ins.  Co. 
N.  Y.  500.     1874. 


57 


§ 


18.  A  general  agent  has  power  to  waive  any  ex 
press  condition  in  the  policy,  and  his  statement  to  the  as- 
sured that  a  condition  in  the  policy  in  relation  to  other  in- 
surance has  been  sufficiently  complied  with  estops  the  com- 
pany from  controverting  that  fact.  Mentz  v.  Lancaster 
Fire  Ins.  Co.  79  Pa.  475.     1875. 

§  19.  If  company  acts  upon  an  informal  notice  of  the 
loss,  it  is  a  waiver  of  its  insufficiency.  West  Rockingham 
Fire  Ins.  Co.  v.  Sheets,  26  Grat.  854.     1875. 


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WAIVER. 


§  20.  After  issue  of  policy  assured  and  his  wife  con- 
veyed property  to  another  by  whom  and  his  wife  it  was 
immediately  conveyed  to  the  wife  of  the  assured.  Action 
was  brought  in  the  name  of  both  the  assured  and  his  wife. 
In  order  to  establish  a  claim  of  waiver  of  condition  in  the 
policy,  making  it  void  in  event  of  a  change  in  the  title  of 
the  property,  it  was  proved  that  after  the  execution  of  the 
conveyance  the  wife  of  the  assured,  for  the  purpose  of 
having  the  policy  changed  if  necessaiy,  went  to  the  oflSce 
of  the  company  and  notified  the  secretary  that  the  deed 
had  been  made  and  was  informed  by  him  "  that  it  made 
no  difference,  and  that  no  change  was  necessaiy;"  and 
that  upon  being  so  informed  she  took  no  further  steps,  but 
suffered  the  policy  to  remain  as  it  was.  Ilelfl,  that  the 
evidence  did  not  establish  claim  of  waiver ;  first,  it  does 
not  aid  the  assured,  because  having  parted  with  his  inter« 
est  the  loss  was  not  his ;  second,  it  does  not  aid  his  wife, 
because  it  was  not  alleged  in  the  complaint  nor  was  there 
any  evidence  in  the  case  tending  to  show  any  assignment 
of  the  policy  to  her  by  her  husband.  Without  such  as- 
signment she  would  have  no  interest  in  the  policy  which 
the  waiver  could  affect.  Langdon  v.  Minnesota  Mut.  Ins. 
Co.  22  Minn.  193.     1875. 

§  21.  If  at  the  time  of  a  renewal  of  a  policy  agent 
knows  of  a  change  which  has  taken  place  in  regard  to  the 
title  of  the  premises,  such  reiiev^al  is  a  waiver  of  conditions 
of  the  policy  in  relation  thereto.  Mechler  v.  Phoenix  Ins. 
Co.  38  Wis.  665.     1875. 

§  22.  An  adjuster  having  authority  to  examine  into 
the  circumstanceH  of  a  fire  to  adjust  the  loss  and  settle 
and  report  to  the  office,  cannot  waive  a  condition  in  re- 
spect to  other  insurance  or  in  any  way  except  in  writing. 
Mason  v.  Hartford  Fire  Ins  Co.  37  tjp.  Can.  Q.  B.  437. 
1876. 

§  23.  Policy  contained  provision  "  that  no  agent  of 
the  company  shall  be  deemed  to  have  waived  any  of  the 
terms  and  conditions  of  the  policy  unless  such  waiver  is 
indorsed  in  writing,"  and  also  required  consent  to  V>e  in- 
dorsed in  case  of  vacancy.     After  policy  was  issued  as- 


WAIVER. 


347 


sured  applied  to  local  agent  of  company  for  permission 
that  the  h^^u8e  insured  should  remain  vacant,  asking  if  it 
was  necessary  to  have  it  indorsed  on  the  policy.  Agent 
replied  that  it  was  not  necessary,  that  he  had  entered  it 
in  the  books  and  it  was  ull  right.  No  report  was  made 
to  the  company.  Ileld^  plaintiff  presumed  to  have  known 
what  contract  contained,  and  that  the  oral  consent  was  an 
act  in  excess  of  the  known  authority  of  the  agent,  who 
could  waive  condition  only  in  prescribed  manner,  that  is 
by  indorsement  on  policy.  Walsh  v.  Hartford  Fire  Ins. 
Co.  73  N.  Y.  5.  1878.  Rev'^  9  Hun,  421.  Over- 
ruling Hotchkiss  V.  Germania  Fire  Ins.  Co.  5  Hun,  90. 
1875.  8.  p.  Hartford  Ins.  Co.  v.  Webster,  69  III.  392. 
1873.    Meyers  v.  Germania  Ins.  Co.  27  La.  Ann.  63.    1875. 

§  24.  Condition  that  policy  shall  be  void  "  if  prem- 
ises are  or  shall  become  vacant  or  unoccupied,  without 
consent  indorsed,"  is  waived  by  knowledge  of  company's 
agent  of  the  facts  at  time  of  issuing  of  policy  and  his 
assent  to  an  understanding  that  property  shall  be  vacant 
for  a  certain  time.  Cone  v.  Niagara  Fire  Ins.  Co.  60  N.  Y. 
619.     1875. 

§  25.  Policy  contained  condition  "  that  anything  less 
than  a  distinct  agreement  indorsed  on  this  policy  shall  not 
be  construed  as  a  waiver,  cfec."  After  issue  of  the  policjr 
the  president  of  the  company  giave  verbal  consent  to  the 
assured  to  remove  goods  into  the  adjoining  building,  as- 
suring him  it  was  not  necessary  to  bring  the  policy. 
Held,  company  estopped  from  insisting  upon  above  con- 
dition as  a  defense.  Maryland  Fire  Ins.  Co.  v.  Gusdorf^ 
43  Md.  500.     1875. 

§  2G.  Local  agent  may  vary  and  waive  the  terms  of 
a  policy  by  parol,  notwithstanding  it  expressly  provides 
that  consent  can  only  be  given  by  a  written  indorsement, 
even  after  its  issue.  In  such  a  case  knowledge  and  con- 
versation with  the  assured  upon  the  subject,  without  ob- 
jection or  any  suggestion  that  any  breach  of  condition  had 
been  created  or  would  be  relied  upon,  is  sufficient  to  make 
a  case  of  estoppel.  Westchester  Fire  Ins.  Co.  v.  Earle,  33 
Mich.  143.     1876. 


ii 


Mr? 


348 


WAIVER, 


'!| 


§  27.  The  facts  that  an  adjuster  visited  place  of  fire 
and  made  inquiries  without  authority  from  defendant  and 
without  knowledge  of  the  plaintir,  xre  no  evidence  of 
waiver  of  condition  requiring  proofs  within  specified  time. 
It  seems,  that  if  even  the  plaintiff  had  known  of  the  acts 
of  the  adjuster  they  could  not  have  legitimately  influenced 
his  action  or  omission  to  act  in  respect  to  the  proofs. 
Blossom  V.  Lycoming  Fire  Ins.  Co.  64  N.  Y.  162.     1876. 

§  28.  A  waiver  to  be  operative  must  be  supported 
by  an  agreement  founded  upon  a  valuable  consideration, 
or  the  acts  relied  on  as  a  waiver  must  be  such  as  to  estop 
a  party  from  insisting  on  a  performance  of  the  contract  or 
the  forfeiture  of  the  conditions.  Ins.  Co.  v.  La  Croix,  45 
Tex.  158.     1876.     See  §§  48,  52,  53. 

§  29.  Submission  to  arbitration  is  a  waiver  of  all 
proof.     Bammessel  v.  Brewers'  Fire  Ins.  Co.  43  Wis.  463. 

1877. 

§  30.  As  an  insurance  company  may  waive  any  con- 
dition in  the  policy  inserted  for  its  benefit,  a  forfeiture 
does  not  necessarily  follow  upon  a  breach,  but  depends 
upon  option  of  the  company.     Ins.  Co.  v.  Norton,  6  Otto, 

234.     1877. 

• 

§  31.  Condition  in  policy  requiring  written  indorse- 
ment of  consent  may  itself  be  waived.  Gans  v.  St.  Paul 
Fire  Ins.  Co.  43  Wis.  108.     1877. 

§  3"J.  An  adjustment  of  a  loss  made  with  a  knowl- 
edge of  all  the  facts  amounts  to  a  waiver  of  all  the  de- 
fenses based  on  provisions  in  the  policy.  Levy  v.  Pea- 
body  Ins.  Co.  10  W.  Va.  560.  1877.  And  see  Eagan  v. 
^tna  Fire  Ins.  Co.  10  W.  Va.  583.  1877.  Smith  v.  Glen's 
Falls  Ins.  Co.  62  N.  Y.  85.  111.  Mut.  Ins.  Co.  v.  Archdea- 
con, 82  111.  236.     1876. 

§  33.  Agent  charged  with  duty  of  settling  a  loss  as 
a  necessary  incident  has  power  to  dispense  with  those  con- 
ditions of  the  policy  which  have  reference  to  the  mode  of 
ascertaining  liability  and  limiting  right  of  action.  Little 
v.  Phcenix  Ins.  Co.  123  Mass.  380.     1877. 


WAIVER. 

§  34.     Statement  made  by  local  agent  after  fire 
assured  that  the  company  would  regard  the  loss  as 
honest  one  and  pay,  does  not  amount  to  a  waiver  of 
of  the  company's  legal  rights.     Card  v.  Phcenix  Ins, 
4  Mo.  App.  424.     1877. 

§  35.     A  delay  of  45  days  in   making  objection 
proofs  at  which  time  it  would  be  too  late  to  complete  ._, 
proofs  and  retain  the  right  of  action  under  the  policy 
Held,  evidence  of  waiver.    Hibernia  Mutual  Fire  Ins.  Co 
V.  Meyer,  10  Vroom,  N.  J.  L.  R.  482.     1877. 

§  36.  Policy  is  voidable  at  option  of  the  company, 
and  does  not  become  absolutely  void  upon  the  happening 
of  facts  which  may  work  a  forfeiture.  If  the  company 
with  knowledge  of  such  facts  after  a  loss  subjects  the  as- 
sured to  further  expense  and  delay  after  his  proofs  are 
once  furnished  it  estops  the  company  from  insisting  upon 
a  forfeiture.  Semhle,  that  constructive  notice  to  the  com- 
pany of  facts  which  might  be  claimed  to  effect  a  forfeiture 
IS  sufficient.  Gans  v.  St.  Paul  Fire  Ins.  Co.  43  Wis.  108. 
1877.     See  §§48,  52. 

§  37.  When  a  local  agent  during  the  continuance  of 
the  policy  is  informed  of  a  proposed  change  of  tenants, 
and  that  the  former  tenant  had  quit  possession,  and  he  re- 
plies that  it  is  "  all  right,"  there  is  a  waiver  of  the  condi- 
tion in  regard  to  occupancy.  Palmer  v.  St.  Paul  Fire  Ins. 
Co.  44  Wis.  201.     1878. 

§  38.     Where  no  word  or  act  has  been  said  or  done  to 
mislead  the  insured  or  throw  him  off  his  guard,  mere 
silence  is  not  enough  to  infer  waiver.     Mueller  v, 
side  Fire  Ins.  Co.  87  Pa.  399.     1878. 


Scuch- 


§  39.  When  defendant  had  consented  to  other  insur- 
ance in  a  certain  company,  both  policies  being  issued  bv 
the  same  agent,  and  subsequently  another  policy  is  substi- 
tuted in  the  place  of  the  second  and  no  consent  of  defend- 
ant is  indorsed  upon  its  policy,  such  substitution  being 
made  with  knowledge  of  defendant's  agent,  and  no  objec- 
tion being  made  upon  au  attempted  acljustment  or  before 


350 


WAIVEK. 


action  was  brought,  Held^  a  waiver  of  the  objection  that 
consent  was  not  indorsed  upon  the  policy.  Collins  v.  Ins. 
€0.79^0.280.     1878. 

§  40.  The  authority  of  a  president  of  an  insurance 
company  to  receive  notice  will  not  be  presumed  to  ustain 
a  waiver.  Ins.  Co.  v.  Lewis,  48  Tex.  622.  1878.  Texas 
Ins.  Co.  V.  Stone,  49  Tex.  4.     1878. 

§  41.  Policy  is  voidable  at  option  of  insurance  com- 
pany, which  cannot  sleep  upon  its  intention  to  avoid  the 
policy  to  the  prejudice  of  the  assured.  The  forfeiture 
may  be  waived  by  laches  of  the  company  misleading  per- 
sons interested  in  the  policy  to  their  prejudice.  Appleton 
Iron  (yo.  V.  British  America  Assurance  Co.  46  Wis.  23. 
1879. 

§  42.  The  issuing  of  a  policy  when  a  portion  of  the 
questions  in  the  application  remain  unanswered  is  a  waiv- 
er  of  answer  to  such  questions.  Armenia  Ins.  Co.  v.  Paul, 
91  Pa.  520.     1879. 

§  43.  Knowledge  of  facts  constituting  forfeiture  is 
essential  to  effect  a  v  ver  of  it  by  any  act  or  declaration 
on  the  part  of  the  company.  Ryan  v.  Springfield  Fire 
Ins.  Co.  46  Wis.  671.     1879. 

§  44.  Semhle,  that  where  condition  requires  written 
consent,  to  be  operative  it  must  ])e  shown  that  assured  had 
knowledge  of  facts  requiring  such  consent.  Green  v. 
Homestead  Fire  Ins,  Co.  17  Ilun,  467.     1879. 

§  45.  Assured  on  asking  for  a  renewal  of  his  policy 
made  known  to  agent  of  company  facts  which  constituted 
a  breach  of  conditions  in  it,  and  upon  paving  the  premium 
received  a  renewal  receipt,  the  agent  stating  that  he  would 
"  make  it  all  right,"  Held,  to  constitute  a  waiver ;  that 
policy  continued  valid  for  another  term,  notwithstanding 
clause  requiring  waiver  to  lie  evidenced  by  writing  in- 
dorsed thereon.  Whiced  v.  Germtinia  Fire  Ins.  Co.  76  N. 
Y.  415.     1879. 

§  46.  Signing  by  a  secretary  of  an  order  for  payment 
of  the  adjustment  of  a  loss  with  knowledge  of  the  facts 


WAIVER. 


351 


constitutes  a  waiver  of  a  rfeiture.  Farmers'  Mutual  Ins. 
Co.  V.  Gm-gett,  43  Mich.  :i89.  1870.  And  see  Smith  v. 
Glen's  Falls  Ins.  Co.  62  N.  Y.  85.     18T5. 

§  47.  Assured  was  notified  by  letter  that  it  would  be 
"  necessary  for  him  to  furnish  proofs  of  loss  as  required  by 
conditions  of  the  policy,''  and  that  the  company  claimed 
the  policy  to  be  void  on  ground  of  existence  of  other  in- 
surance not  consented  to.  Ileld^  that  although  assured 
was  put  to  trouble  and  expense  in  the  furnishing  of  proofs, 
company  was  not  thereby  estopped  from  insisting  upon 
the  forfeiture  caused  by  the  other  insurance.  Phoenix  Ins. 
Co.  V.  Stevenson,  8  Ins.  L.  J.  922.     1879.     Ky. 

§  48.  The  doctrine  of  waiver  should  not  be  extended 
so  as  to  deprive  a  i)arty  of  a  defense  merely  because  he 
negligently  or  incautiously  when  a  claim  is  first  presented, 
while  denying  his  liability,  omits  to  disclose  the  ground 
of  his  defense,  or  states  another  ground  than  that  upon 
which  he  finally  relies.  There  must  in  addition  be  evi- 
dence from  which  the  jury  would  be  justified  in  finding 
that  with  full  knowledge  of  the  facts  there  was  an  inten- 
tion to  abandon,  or  not  to  insist  upon  the  particular  de- 
fense afterward  relied  upon,  or  that  it  was  purposely  con- 
cealed under  circumstances  calculated  to  and  which  actu- 
ally did  mislead  the  other  party  to  his  injury.  Devens  v. 
Mechanics'  and  Traders'  Ins.  Co.  83  N.  Y.  168.  1880. 
See  §  52. 

§  49.  Policy  provided  that  the  acts  of  the  insurers  in 
saving  and  preserving  the  property  insured  should  not  be 
considered  as  affirming  or  denying  any  liability  under  the 
policy.  Company  after  a  fire  directed  master  of  boat  in- 
sured to  store  the  anchors  and  other  articles  saved.  Ileldy 
not  to  constitute  a  waiver  of  a  breach  of  warranty  in  re- 
spect to  requiring  notification  of  time  and  place  of  boat 
being  laid  up.  Devens  v.  Mechanics'  and  Traders'  Ins. 
Co.  83N.  Y.  1G8.     1880. 

§  50.  Company  does  not  waive  defense  of  breach  of 
warranty  by  stating  when  it  receives  proofs  that  they  con- 
sider they  owe  nothing  as  fire  was  caused  by  carelessness. 
The  omission  to  put  its  disclaimer  upon  ground  of  breach 


f; 

% 


$m 


WAIVER. 


of  warranty  in  answer  to  an  inquiry  as  to  amount  due  is 
not  a  waiver  of  such  defense.  Devens  v.  Mechanics'  and 
Traders'  Ins.  Co.  83  N.  Y.  168.     1880. 

§  51.  Company  does  not  waive  defense  of  the  exist- 
ence of  other  insurance  by  refusal  to  pay,  when  demand 
is  made,  upon  other  grounds.  Galveston  Ins.  Co.  v.  Hei- 
denheimer,  9  Ins.  L.  J.  592.     1880.     Texas. 

§  52.  Where  there  has  been  a  breach  of  condition 
company  may  or  may  not  take  advantage  of  such  breach 
and  claim  a  forfeiture.  It  may,  consulting  its  own  inter- 
ests, choose  to  waive  the  forfeiture,  and  this  it  may  do  by 
express  language  to  that  effect,  or  by  acts  from  which  an 
intention  to  waive  may  be  inferred,  or  from  which  a  waiver 
follows  as  a  legal  result.  A  waiver  cannot  be  inferred 
from  its  mere  silence.  It  is  not  obliged  to  do  or  say  any- 
thing to  make  the  forfeiture  effectual.  It  may  wait  until 
claim  is  made  under  the  poilcy,  and  then  in  denial  thereof 
or  in  defense  of  a  suit  commenced  therefor  allege  the  for- 
feiture. But  it  may  be  asserted  broadly  that  if  in  any  ne- 
gotiations or  transactions  with  the  assured,  after  knowl- 
edge of  the  forfeiture,  it  recognizes  the  continued  validity 
of  the  policy,  or  does  acts  based  thereon,  or  requires  the 
assured  by  virtue  thereof  to  do  some  act  or  incur  some 
trouble  or  expense,  the  forfeiture  is  as  matter  of  law- 
waived;  and  it  is  now  settled  in  this  court,  after  some 
difference  of  opinion,  that  such  a  waiver  need  not  be  based 
upon  any  new  agreement  or  an  estoppel.  &rl.  J.  Titus 
V.  Glen's  Falls  Ins.  Co.  81  N.  Y.  410.     1880.     See  §  48. 

§  53,  Where  company,  with  knowledge  of  the  facts 
constituting  breach  of  a  condition,  requires  assured  to  sub- 
mit to  an  examination,  and  he  does  so  under  clause  in  pol- 
icy in  reference  thereto,  it  operates  as  a  waiver  of  the  for- 
feiture. Titus  V.  Glen's  Falls  Ins.  Co.  81  N.  Y.  410. 
1880.  s.  p.  Northwestern  Mut.  Ins.  Co.  v.  Germania  Fire 
Ins.  Co.  40  Wis.  44G.     187C. 

§  54.  Knowledge  of  company  of  all  the  facts  consti- 
tuting a  forfeiture,  and  its  act  or  declaration  with  such 
knowledge,  are  essential  to  sustain  a  claim  of  waiver. 
Fitch patrick  v.  Ilavvkeye  Ins.  Co.  53  Iowa,  335.     1880. 


WAIVER. 


353 


§  55.  Company  may  refuse  to  pay  without  specifying 
any  ground,  and  insist  upon  any  available  ground,  but  if 
they  plant  themselves  upon  a  specified  defense,  and  so 
notify  the  assured,  they  should  not  be  permitted  to  retract 
after  the  latter  has  acted  upoii  their  position  as  announced, 
and  incurred  expenses  in  consequence  of  it.  Brink  v. 
Hanover  Fire  Ins.  Co.  80  N.  Y.  108.     1880. 

§  56.  Delay  and  silence,  assured  being  in  no  way 
harmed,  do  not  justify  un  inference  of  waiver.  How  v. 
Union  Mutual  Life  Ins.  Co.  80  N.  Y.  32.     1880. 

§  57.  Assured  may  declare  upon  his  policy  as  written, 
and  if  the  company  avers  and  proves  breach  of  a  conditioa 
assured  may  prove  a  waiver  of  it,  without  its  being  neces- 
sary to  reform  the  policy.  Smith  v.  Commonwealth  Ins.. 
Co.  49  Wis.  322.     1880. 

See  Adjustment,  §  4.  Agent,  22,  30,  35,  37,  44,  46,  50,  55,  70,  76,  84,  93,. 
99,  104.  Alienation,  9,  38,  02,  68.  Application,  3,6,  7.  Arbitration,  10,  11. 
Cancellation,  11,  12.  Certificate,  14,  17.  Construction,  9.  Contribution,  19. 
Encumbrance,  7.  Evidence,  12,  46,  47,  61.  Examination,  4.  Insurable  In- 
terest, 38.  Lighting,  3.  Limitation,  2,  4,  6,  7,  8, 18, 19.  22,  29,  30.  Mutual 
Company,  1,  21,  25,  27,  63,  69,  83,  90,  96,  99,  105,  109,  111,  113,  116,  117, 
138, 140, 149,  153.  Notice  of  Loss,  6,  8,  9.  Other  Insurance,  5,  11,  35,  42, 
51,  54.  Parol  Contract,  21,  33.  Pleading  and  Practice,  12,  16,  21,  29,  30. 
Premium,  1,  3,  7,  10,  11,  16.  Proofs  of  Loss,  1,  2,  5,  6,  7,  8,  10,  10,  19,  22, 
20,  28,  30,  34,  35,  39,  40,  43,  44,  46,  47,  48.  49,  50,  53,  54,  55,  61,  62,  64,  65, 
67,  68,  71,  79,  80,  81,  83,  88.  Questions  for  Court  and  Jury,  1.  Rebuild, 
5.  Renewal,  1,  9.  Risk,  6,  20.  Storing  and  Keeping,  13.  Title,  30,  37,  50, 
56.  Use  and  Occupation,  7, 10.  Valued  Policy,  3.  Vacant  or  Unoccupied, 
3,  5,  36.    Warranty  and  Representation,  27,  35,  40. 


im 


'     di 


Vol.  IL— 23 


WARRANTY  AND    REPRESENTATION. 

§  1.  A  verbal  representation  to  vitiate  a  contract  of 
insurance,  must  relate  to  some  past  or  existing  fact  mate- 
rial to  the  risk ;  if  in  the  nature  of  a  promise  or  stipulation 
for  future  conduct  it  must  be  inserted  in  the  policy,  or 
company  cannot  avail  itself  of  it.  Mayor  of  N.  Y.  v. 
Brooklyn  Fire  Ins.  Co.  3  Abb.  Ct.  App.  Dec.  251.     1868. 

§  2.  Description  of  property  insured  as  a  "  brick 
building,"  is  not  a  warranty  that  the  building  is  construct- 
ed entirely  of  brick.  Gershauser  v.  N.  B.  &  Mercantile 
Ins.  Co.  1  Nev.  174.    1871. 

§  3.  If  there  is  any  danger  of  incendiary  fire,  reason- 
ably to  be  apprehended,  known  to  the  assured,  it  is  his 
duty  to  state  it  in  his  application  and  inform  company  of 
it ;  and  if  he  answers  falsely  in  that  legard,  and  a  loss  en- 
sues, company  is  relieved  from  liability.  But  such  incen- 
diary danger  must  be  real  and  substantial,  one  that  nec- 
essarily enhances  the  risk,  one  which  a  man  of  ordinary 
prudence  and  caution  would  regard  as  not  mere  idle  talk 
or  reports,  which  if  the  assured  knew  of,  he  might  ba 
excused  from  repeating  to  the  agent.  McBride  v.  Repul> 
lie  Fire  Ins.  Co.  30  Wis.  562.     1872. 

§  4.  The  question  of  materiality  in  case  of  misrepre- 
sentation as  to  title  must  be  submitted  to  jury.  Bellatty 
V.  Thomaston  Ins.  Co.  61  Me.  414.     1873. 

§  5.  A  statement  in  policy  that  building  is  "  occupied 
as  a  country  store,"  is  a  warranty  that  the  building  was 
used  at  the  date  of  the  agreement  for  the  purpose  speci- 
fied. Dewees  V.  Manhattan  Ins.  Co.  6  Vroom,  N.  J. L.  R. 
366.     1872. 

§  6.  When  property  is  insured  aa  a  dwelling-house, 
the  fact  that  it  is  or  was  after  the  insurance  occupied  as  a 
boarding-house  does  not  constitute  a  breach  of  warranty. 
Planters^  Ins.  Co.  v.  Sorrels,  1  Baxt.  352.    1872. 


WARRANTY  AND  REPRESENTATION. 


3W 


ION. 

>n  tract  of 
Pact  inate- 
tipulation 
policy,  or 
N.  Y.  V. 
1.     1868. 

a  "brick 
construct- 
lercantile 


e,  reaaon- 

,  it  is  his 

mpany  of 

a  los8  en- 

ich  incen- 

that  nee- 

ordinary 

idle  talk 

might  ba 

V.  RepuV 


misrepre- 
Bellatty 


'  occupied 
ding  waa 
ose  speci- 
N.J.L.R. 


[ng-hou3e, 
pied  as  a 
warranty. 


§  7.  A  warranty  that  stoves  and  pipes  shall  be  kept 
well  secured  is  not  broken  by  a  temporary  removal  of 

f)ipe  at  a  time  when  stove  is  not  in  use.     Mickey  v.  Bur- 
ington  Ins.  Co.  35  Iowa,  174.     1872. 

§  8.  An  answer  "  W.  D."  to  question  as  to  title  can- 
not  be  held  to  mean  "  warranty  deed"  without  extrinsic 
evidence,  and  even  if  so  found  it  does  not  necessarily  fol- 
low that  it  is  equivalent  to  representation  that  assured, 
owned  property  in  fee.  Rockford  Ins.  Co.  v.  Nelson,  65 
111.  415.     1872. 

§  9.  While  a  warranty  relating  to  an  existing  fact 
must  be  literally  true,  or  policy  does  not  attach,  that 
which  is  promissory  in  its  nature  is  not  so  strictly  con- 
strued. In  latter  case  it  is  sufficient  if  suhstantially  true 
or  performed.  Cady  v.  Imperial  Ins.  Co.  4  Cliff.  203. 
1873.    8.  p.  James  v.  Lycoming  Ins.  Co.  Id.  272.     1874. 

§  10.  Warranty  was  "  that  the  forcing  pump  and  hy- 
drants should  be  kept  in  good  working  order;  also  a  good 
supply  of  water  casks  and  buckets  in  each  room."  Held, 
promissory  in  its  nature,  and  no  breach  if  substantially 
complied  with,  as  by  proof  of  the  existence  of  the  pump 
and  hydrants  and  reasonable  skill  and  care  in  keeping 
same  m  order,  and  by  keeping  the  casks  and  buckets  in 
an  accessible  place  convenient  for  use,  although  in  an  ad- 
joining connected  room  or  entry.  Cady  v.  Imperial  Ins. 
Co.  4  Cliff.  203.     1873. 

§  11.  Whatever  is  expressed,  whether  with  perspicu- 
ity or  obscurity,  that  is  what  is  warranted.  If  there  be 
latent  ambiguity  it  may  be  removed  by  testimony.  Bryce 
v.  Lorillard  Fire  Ins.  Co.  55  N.  Y.  240.    1873. 

§  V?.  Policy  insured  merchandise  "  contained  in  letter 
C.J  Patterson  Stores,  South  Front,  below  Pine  street,  Phil- 
adelphia." Patterson  stores  was  a  warehouse,  divided  in- 
to eight  sections  or  buildings,  being  designated  by  the  let- 
ters A,  B,  C,  &c.  The  sections  were  divided  from  each 
other  by  substantial  brick  walls,  with  no  communication 
between.    The  walls  extended  twelve  inches  above  the 


356 


WARRANXr  AND  REPRESENTATION. 


roof.  At  time  of  issue  of  policy  and,  at  time  of  fire  the 
property  was  in  fact  in  letter  A  and  not  in  letter  C.  Held, 
description  a  warranty ;  that  the  latent  ambiguity  in  use 
of  the  term  "  letter  C  "  was  removable  by  testimony ;  that 
there  was  a  breach  and  there  could  be  no  recovery ;  that 
assured  could  not  itivoke  the  aid  of  the  maxim  '■''falsa 
demonatratio  non  nocet ;"  there  must  be  in  the  description 
so  much  that  is  true,  as  that,  casting  out  that  which  is 
false,  there  is  still  enough  left  to  clearly  point  out  the 
place  in  which  is  the  property.  Bryce  v.  Lorillard  Ins. 
Co.  55  N.  Y.  240.  1873.  s.  p.  Hartford  Ins.  Co.- v.  Par- 
ish, 73  111.  166.     1874. 

§  13.  A  description  of  the  place  of  deposit  of  per- 
sonal property  inserted  in  the  policy  is  a  warranty,  and  a 
condition  precedent,  not  to  be  avoided  by  the  fact  that 
the  truth  of  the  description  is  not  essential  to  the  risk, 
nor  an  inducement  for  company  to  enter  into  contract. 
Bryce  v.  Lorillard  Fire  Ins.  Co.  55  N.  Y.  240.     1873. 

§  14.  A  statement  that  "there  is  $4,000  insurance  on 
the  property  now  "  does  not  constitute  a  warranty  that  it 
is  upon  the  interest  of  the  applicant  and  assured.  If  not 
expressly  stated  the  interest  insured  may  be  shown  by 
parol  testimony.  Planters'  Mut.  Ins.  Co.  v.  Deford,  38 
Md.  382.  1873.  s.  p.  Frederick  Co.  Mut.  Ins.  Co.  v.  De- 
ford,  Id.  404. 

§  15.  Policy  contained  provision  that  an  overvalua- 
tion either  in  written  application  or  otherwise  should  ren- 
der it  void.  Assured  stated  in  his  written  application 
that  the  value  of  the  property  was  $8,000  or  more.  Upon 
the  trial  he  admitted  that  he  knew  it  was  worth  at  tlie 
time  of  his  application  not  more  than  $4,000.  Its  real 
value  was  then  about  $3,000.  Held,  to  constitute  a  breach 
of  warranty ;  that  the  question  of  overvaluation  in  the 
application  was  not  one  to  be  submitted  to  the  jury  as  a 
question  of  good  faith  or  fraud.  American  Ins.  Co.  v. 
Gilbert,  27  Mich.  429.     1873. 

§  16.  Policy  provided  that  false  representations  by 
the  assured  of  the  condition,  situation  or  occupancy  of  the 


WARRANTY  AND  REPRESBXTATION. 


357 


property,  or  any  omission  to  make  known  any  fact  mate- 
rial to  the  risk,  or  an  overvaluation  or  any  misrepresenta- 
tion whatever  either  In  the  written  application  or  other- 
wise, shall  render  it  void.  Held^  that  the  intent  of  the 
whole  provision  was  to  make  all  representations  in  legal 
eflfect  warranties,  breach  of  which  to  render  policy  void, 
whether  material  to  the  risk  or  not,  while  the  mere  sup- 
pression of  or  omission  f  r^  state  any  other  fact  should  only 
have  that  effect  when  tLe  fact  suppressed  was  one  mate- 
rial to  the  risk.  American  I:;  3.  Co.  v.  Gilbert,  27  Mich. 
429.     1873. 

§  17.  A  representation  that  assured  held  building  in 
fee  is  rendered  false  by  the  fact  that  lie  had  a  leasehold 
interest  only  and  his  right  to  remove  the  building  cannot 
help  the  assured.  Stickney  v.  Niagara  District  Mut.  Ins. 
Co.  23  Up.  Can.  C.  P.  372.     1873. 

§  18.  If  assured  fairly  represented  what  he  honestly 
believed,  it  will  not  defeat  the  action  where  the  statement 
of  fact  does  not  amount  to  a  warranty.  Imperial  Fire 
Ins.  Co.  V.  Murray,  73  Pa.  13.     1873. 

§  19.  It  is  not  necessary  that  a  misrepresentation 
should  be  made  with  intent  to  defraud.  The  false  repre- 
sentation of  a  material  fact  voids  the  insurance  if  policy 
is  issued  on  faith  of  it  whether  the  false  representation 
was  by  mistake  or  designed.  Continental  Ins.  Co.  v. 
Kasey,  25  Grat.  268.     1874. 


§  20.  Assured  stated  in  his  application  that  the  prop- 
erty was  not  mortgaged,  that  he  was  the  sole  and  undis- 
puted owner  of  the  property  and  that  he  owned  the 
ground  on  which  the  building  stood  by  contract.  Held^ 
that  this  must  be  construed  as  equivalent  to  a  representa- 
tion that  no  person  other  than  himself  had  any  substan- 
tial interest  in  the  property,  and  it  appearing  that  there 
was  an  interest  or  lien  upon  the  premises  in  favor  of  the 
vendor  to  the  amount  of  the  unpaid  purchase-money  that 
there  was  a  breach  of  warranty.  Hinman  v.  Hartford 
Fire  Ins.  Co.  36  Wis.  159.    1874. 


)i; 


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i    '.   i 


m  \ 


358 


WARRANTY  AND  REPRESENTATION. 


§21.  An  application  made  part  of  the  policy  con- 
tained "  how  often  is  account  of  stock  taken,  when  was  it 
last  taken  and  what  amount  did  it  reach  ?"  Answer : 
"  Ever>^  three  months ;  Ist  January,  1872 ;  $4,000."  Held, 
that  this  could  not  be  construed  as  a  warranty  obliging 
the  assured  to  take  an  inventoiy  precisely  upon  the  expi- 
ration of  every  three  months.  Wynne  v.  Liv.,  Lond.  & 
Globe  Ins.  Co.*  71  N.  C.  121.     1874. 

§  22.  Application  being  made  part  of  policy  both 
instruments  must  be  construed  together.  Edwards  v 
Farmers' Ins.  Co.  74  111.  84.     1874. 

§  23.  No  part  of  an  application  can  be  regarded  as  a 
warranty  unless  made  so  by  the  contract  of  insurance. 
To  do  this  the  same  stipulations  must  be  inserted  in  the 
contract,  or,  if  not  so,  the  paper  containing  them  must  be 
referred  to  and  adopted,  so  as  to  become  part  of  the  con- 
tract. Owens  V.  Holland  Purchase  Ins.  Co.  56  N.  Y.  .565. 
1874.  8.  p.  Co-operative  Assoc,  v.  Leflore,  53  Miss.  1. 
1876.  Byers  v.  Farmers'  Ins.  Co.  9  Ins.  L.  J.  743.  1880. 
Ohio. 

§  24.  A  warranty  should  be  construed  without  refer- 
ence to  its  effect  upon  the  risk.  Schultz  v.  Merchants' 
Ins.  Co.  57  Mo.  331.     1874. 

§  25.  Where  an  application,  made  a  warranty,  con- 
tained several  answers  to  effect  that  "assured  was  the 
owner  of  the  property,  and  that  no  other  person  was  inter- 
ested," and  in  response  to  a  question  as  to  encumbrances 
stated  "  held  by  contract,"  and  it  appeared  assured  was  in 
possession  under  a  contract  of  sale,  IleM,  the  several  an- 
swers must  be  construed  together,  and  that  as  plaintiff's 
interest  was  correctlv  stated,  there  was  no  breach.  Mc- 
Culloch  V.  Norwood,  58  N.  Y.  562.     1874. 

§  26.  Where  distance  between  buildings  is  made  a 
warrantv,  if  actually  less  than  stated,  there  is  a  broach. 
Mamlokv.  Franklin,  65  N.Y.  556.     1875. 

§  27.  Where  company  after  a  loss,  in  consideration  of 
the  surrender  and  cancellation  of  the  policy,  agrees  to  pay 


WARRANTY  AND  REPRESENTATION. 


licy  con- 
n  was  it 
Answer : 
"  IhU, 
obliging 
the  expi- 
Lond.  <fe 


ley  both 
vards   v 


ded  as  a 
isurance. 
1  in  the 
must  be 
the  con- 
.  Y.  565. 
Miss.  1. 
1.    1880. 


►ut  refer- 
srchants' 

ity,  con- 
was  the 
as  inter- 
ibrances 
i  was  in 
eral  an- 
laintiff's 
3li.    Mc- 

niade  a 
I  breach. 

cation  of 
8  to  pay 


a  certain  amount,  the  action  may  be  properly  brought 
upon  the  new  agreement,  and  hence  the  limitation  clause, 
and,  in  the  absence  of  fraud,  a  breach  of  warranty,  are  not 
available  as  defenses.  And  such  is  the  case  notwithstand- 
ing company  does  not  know  of  the  breach  at  the  time  of 
settlement.  Smith  v.  Glen's  Falls  Ins.  Co.  62  N.  Y.  85. 
1875.  Affi'g  66  Barb.  556.  s.  p.  111.  Mut.  Ins.  Co.  v. 
Archdeacon,  82  111.  236.     1876. 

§  28.  The  phrase  "  on  Mb  building,"  <fec.,  is  not  a 
warranty  of  ownership,  nor  a  material  misrepresentation, 
assured  being  in  possession.  The  words  should  be  viewed 
as  a  description  indicating  the  purpose  of  the  parties  and 
what  property  was  in  their  minds.  Rohrbach  v.  Ger- 
mania  Fire  Ins.  Co.  62  N.  Y.  47.     1875. 

§  29.  Application  was  made  a  warranty.  In  it  as- 
sured stated  that  he  had  disclosed  all  the  facts  in  relation 
to  the  property  so  far  as  the  same  were  known  to  him. 
But  in  answer  to  the  question,  "  Is  your  title  to  the  prop- 
erty absolute?  If  not  state  its  nature  and  amount;"  the 
only  answer  given  was,  "  His  deceased  wife  held  the  deed." 
Assured  in  fact  had  only  a  written  certificate  signed  by 
his  wife,  declaring  she  owed  him  so  much  money,  and  that 
the  amount  was  a  lien  upon  her  property.  Iletd^  the  ap- 
plication did  not  by  its  representations  put  defendant  in 
possession  of  the  exact  facts  of  the  case,  and  tended  to 
mislead  as  to  real  situation  of  the  property  and  the  real 
interest  of  the  plaintiff  in  it,  and  that  it  was,  therefore,  in 
this  respect  a  warranty,  and  that  there  was  a  breach. 
Rohrbach  v.  Germania  Fire  Ins.  Co.  62  N.  Y.  47.     1875. 

§  30.  Policy  read  after  describing  the  property  and 
its  situation  "per  survey  No.  18,611,  filed  in  the  office  of 
the  People's  Insurance  Company,  New  York."  Such  sur- 
vey was  actually  filed  as  stated,  and  policy  was  issued  upon 
faith  of  its  statements.  Held,  that  the  survey  was  made 
part  of  the  policy  and  a  warranty.  Steward  v.  Pha3nix 
Fire  Ins.  Co.  5  Hun,  261.     1875. 

§  31.  A  statement  in  the  policy  that  building  in- 
sured is  occupied  as  a  hardware  store  and  dwelling  does 


369 


WARRANTY  AND  REPRESENTATION. 


not  warrant  that  it  shall  continue  to  be  so  used  during  the 
continuance  of  the  policv.  Bryan  v.  Peabody  Ins.  Co.  8 
W.  Va.  605.     1875. 

§  32,  When  policy  provides  that  the  existence  of  a 
certain  fact  shall  render  it  void,  the  parties  themselves  by 
their  contract  make  such  fact  material,  and  it  is  immaterial 
whether  the  fact  was  material  to  the  risk  or  not,  or  whether 
its  non-disclosure  induced  the  company  to  issue  the  policy 
or  not.     Beck  v.  Hibernia  Ins.  Co.  44  Md.  95.     1875. 

§  33.  To  sustain  defense  of  a  fraudulent  misrepresen- 
tation, it  is  not  necessary  that  the  company  refund  the 
premium.  Blaeser  v.  Milwaukee  Mutual  Ins.  Co.  37  Wis. 
31.     1875. 

§  34.  The  knowledge  of  an  agent,  authorized  to  pro- 
cure and  submit  applications,  and  to  issue  policies  when 
signed  by  the  proper  officers  of  the  company  and  trans- 
mitted to  him,  i"^  immaterial  in  ease  of  warranty,  policy 
containing  usual  agency  clause,  and  there  being  no  fraud. 
Kohrbach  v.  Germania  Fire  Ins.  Co.  62  N.  Y.  47.     1875. 

§  35.  A  warranty  and  effect  of  breach  thereof  created 
by  false  statements  in  application  cannot  be  altered  by 
a.  verbal  agreement  with  the  agent  at  the  time  of  obtain- 
ing the  insurance.  Dingee  v.  Agricultural  Ins.  Co.  3 
Pugsley,  N.  B.  80.     1875. 

§  36.  A  representation  of  value  must  be  considered  a 
matter  material  to  the  risk.  Williamson  v.  Commercial 
Union  Ins.  Co.  25  Up.  Can.  C.  P.  453.     1875. 

§  37.  All  representations  of  assured  contained  in  the 
policy  by  being  written  therein,  or  incorporated  therein 
by  reference  are  warranties,  and  must  be  substantially 
true  or  policy  will  be  void.  Questions  of  materiality,  good 
faith,  and  knowledge  of  an  agent,  cannot  affect  the  result. 
Foot  V.  ^tna  Life  Ins.  Co.  61  N.  Y.  571.     1875. 

§38.  The  provision  of  the  Mass.  statute  (1864,  c. 
196)  that  "the  conditions  of  the  insurance  shall  be  stated 
in  the  body  of  the  policy,"  is  complied  with  by  a  state- 


WARRANTY  AND  REPRESENTATION 


361 


inent  of  substance  of  condition  on  face  of  policy,  with  dis- 
tinct reference  to  schedules  or  details  printed  upon  a  sub- 
sequent page ;  a  mere  general  declaration  upon  the  face  of 
policy  that  it  is  made  and  acceptf «!  in  reference  to  condi- 
tions annexed,  and  that  tliey  are  part  of  the  contract  is  not 
sufficient.  Mullaney  v.  National  Ins.  Co.  118  Mass.  393. 
1875. 

§  39.  When  assured  makes  a  written  application  for 
insurance  containing  false  statements  and  material  omis- 
sions, the  fact  that  company's  agent  had  knowledge  also 
at  the  time  does  not  prevent  company  from  insisting  upon 
a  breach  of  warranty.  Shannon  v.  Gore  District  Mutual 
Fire  Ins.  Co.  37  Up.  Can.  Q.  B.  380.     1875. 

§  40.  Policy  contained  usual  clause  providing  that 
any  person  other  than  the  assured  procuring  the  insurance 
should  be  deemed  the  a^ent  of  the  assured  and  not  of  the 
company.  The  application  for  the  insurance  was  taken  by 
one  Brewster  who  was  engaged  in  soliciting  busin  :ss,  taking 
and  filling  out  applications,  receiving  premiums.  <fec.,  for  de- 
fendant. He  was  aware  at  time  he  took  the  application  of 
a  fact  constituting  a  breach  of  warranty.  Hetd^  that  his 
knowledge  could  not  aflPect  validity  of  the  warranty,  even 
assuming  that  he  was  defendant's  agent  for  purpose  of  tak- 
ing the  application.  Alexander  \.  Germania  Fire  Ins.  Co. 
66  N.  Y.  464.     1876.    Rev'g  2  Hun,  655. 

§  41  Knowledge  of  an  agent  does  not  relieve  assured 
from  consequences  of  a  breach  of  warranty.  Barteau  v. 
Phcenix  Mut.  Life  Ins.  Cc  67  N.  Y.  595.     1876. 

§  42.  A  warranty  cannot  be  created  or  extended  by 
construction.  Wilkins  v.  Ins.  Co.  30  Ohio,  318.  1876. 
s.  p.  Planters'  Ins.  Co.  v.  Myers,  55  Miss.  479.     1877. 

§  43.  In  case  of  an  insurance  upon  a  boat,  a  tempo- 
rary deviation  from  a  permitted  course  does  not  render 
the  policy  void  so  as  to  prevent  a  recovery  for  a  loss  hap- 
pening subsequently.  Wilkins  v.  Ins.  Co.  30  Ohio,  317. 
1876. 

§  44.  A  representation  as  to  value  of  property  in  an 
application  made  a  warranty,  does  not  avoid  it  unless  de- 


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i 

il 

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L 

i 

362 


WARRANTY  AND  REPRESENTATION. 


signedly  untrue.     Redford  v.  Mut.  Fire  Ins.  Co.  38  Up. 
Can.  Q.  B.  538.     1876. 

§  45.  If  policy  provides  that  if  the  statements  in 
the  application  are  untrue,  their  falsity  in  any  respect 
shall  avoid  the  policy,  it  removes  the  question  of  material- 
ity from  the  consideration  of  the  court  or  the  jury.  Co- 
operative Association  v.  Leflore,  53  Miss.  1.     1876. 

§  46.  Mass.  statute,  1864,  ch.  196,  provides  that  "  the 
conditions  of  insurance  shall  be  stated  in  the  body  of  the 
policy,  and  neither  the  application  of  the  insured  nor  the 
by-laws  of  the  company  shall  be  considered  as  a  warranty 
or  a  part  of  the  contract,  except  so  far  as  they  are  incor- 
porated in  full  into  the  policy  and  so  appear  on  its  face." 
I*olicy  contained  following  clause :  "  reference  is  had  to  ap- 
plication on  file  at  this  office,  which  is  hereby  made  a  part 
of  this  policy,  and  a  warranty  on  part  of  the  assured." 
Ileld^  that  companj'^  could  not  be  permitted  to  defeat  a  re- 
covery by  treating  the  application  as  a  representation. 
Taylor  v.  iEtna  Ins.  Co.  120  Mass.  254.     1876. 

§  47.  In  case  of  warranty,  truth  of  the  representation 
is  a  condition  precedent  to  validity  of  policy,  unaffected 
by  knowledge  of  assured.  Merwin  v.  Stpr  Fire  Ins.  Co,  7 
Itun,  659.    1876.    Affi'd  (without  opinion),  72  N.  Y.  603. 

§  48.  A  description  of  property  insured  as  a  "  dwel- 
ling-house," constitutes  a  warrantv.  Merwin  v.  Star  Fire 
Ins.  Co.  7  Hun,  659.  187o.  Affi'd  (without  opinion),  72 
N.  Y.  603. 

§  49.  When  an  application,  made  a  warranty,  con- 
tain? questions  and  answers,  only  such  parts  of  the  an- 
swers as  are  responsive  are  to  be  deemed  warranties. 
When  not  responsive,  but  volunteered  without  being 
called  for,  they  should  be  considered  as  mere  representa- 
tions, upon  which  no  defense  can  be  based  imless  material 
as  well  as  false.  Buel  v.  Connecticut  Life  Ins.  Co.  6  Ins. 
L.  J.  274.     1876.     Wis. 

§  50.  Policy  read  '•  on  his  two-story  and  extension 
frame,  shingle  roof  building,  occupied  as  dwelling,  situate, 


WARRANTY  AND  REPRESENTATION. 


363 


38  Up. 


con- 


being 


<fec."  At  time  of  its  issue  building  was  vacant.  Heldy 
that  "occupied  as  dwelling"  was  a  warranty,  and  the  fact 
of  unoccupancy  constituted  a  breach  which  rendered  pol- 
icy void.  Alexander  v.  Gcrraania  Fire  Ins.  Co.  60  N.  Y 
464.     1876.     Rev'g  2  Hun,  655. 

§  61.  In  case  of  warranty  it  is  immaterial  wliether 
representations  or  statements  were  made  in  ignorance  or 
fraudulently.  Baker  v.  Home  Life  Ins.  Co.  64  N.  Y.  648. 
1876. 

§  52.  Breach  of  warranty  cannot  be  based  upon  an 
overvaluation,  unless  shown  to  be  intentionally  excessive. 
National  Bank  v.  Ins.  Co,  5  Otto,  673.     1877. 

§  53.  When  assured  signed  a  blank  form  of  applica- 
tion, which  was  subsequently  filled  up  by  company's 
agent,  without  any  knowledge  or  dictation  of  the  assured, 
Held^  that  assured  made  no  warranty  thereby.  Sprague 
v.  Holland  Purchase  Ins.  Co.  69  N.  Y.  128.     1877. 

§  54.  A  warranty  will  not  be  extended  to  include 
anything  not  necessarily  implied  in  its  terms.  Dilleber  v. 
Home  Life  Ins.  Co.  69  N.  Y.  256.     1877. 

§  55.  Description  of  a  house  insured  as  a  dwelling  is 
not  a  warranty  that  it  is  occupied  as  such,  iu  absence 
of  evidence  showing  misrepresentation  or  concealment. 
Browning  v.  Home  Ins.  Co.  71  N.  Y.  508.     1877. 

§  56.  Application  made  a  warranty  by  reference  in 
the  policy,  contained  a  clause  to  the  effect  that  assured 
had  given  full  and  correct  information,  &c.,  so  far  as  the 
same  **  U  hiown  to  the  applicant  and  material  to  the  rishr 
Held,  that  the  clause  in  italics  qualified  the  warranty,  and 
that  knowledge  and  materiality  were  essential  elements  of 
a  breach.  That  policy  could  not  be  declared  void  on 
ground  of  an  overvaluation  in  the  application.  First 
National  Bank  v.  Hartford  Fire  Ins.  Co.  7  Ins.  L.  J.  208. 
1877.    U.  S.  Circuit,  Mo. 

§  57.  Description  of  occupation  in  policy  is  a  war- 
ranty that  building  is  occupied  as  represented.    If  not  so 


*;K'g 


I 


II  f  <  i 


WARRANTY  AND  REPRESENTATION. 


occupied  contract  is  violated  the  moment  of  its  execution, 
and  never  becomes  binding  upon  the  company.  Farmers' 
Ins.  Co.  V.  Curry,  6  Ins.  L.  J.  733.     1877.     Ky. 

§  58.  Kentucky  Act  of  1874,  which  provides,  in  sub- 
stance, that  all  statements  and  descriptions  shall  be  held 
representations  and  not  warranties,  does  not  prevent  par- 
ties to  an  insurance  contract  from  stipulating  otherwise. 
Farmers'  Ins.  Co.  v.  Curry,  (j  Ins.  L.  J.  733.     1877.     Ky. 

§  59.  Words  descriptive  of  present  use  will  not  be 
construed  into  a  promissory  stipulation  that  use  shall  re- 
main unchanged,  unless  inteni  on  of  parties  is  clearly 
manifest.    Hartford  Fire  Ins.  Co.  v.  Smith,  3  Col.  422. 

1877. 

§  60.  Under  the  Georgia  Code  an  application,  although 
made  a  warranty,  does  not  void  the  policy  unless  the  vari- 
ation changes  the  nature,  extent,  or  character  of  the  risk. 
Mobile  Fire  Dep.  Ins.  Co.  v.  Miller,  58  Ga.  420.     1877. 

§  61.  A  statute  which  provides  that  all  statements 
or  descriptions  in  an  application  "  shall  be  deemed  and 
held  representations  and  not  warranties,''  does  not  prevent 
parties  from  contracting  otherwise.  When  parties  by 
their  contract  stipulate  that  parts  of  it  shall  have  a  con 
struction  and  effect  different  from  w1 
^ive  but  for  their  contrary  declni  \ 
itself,  it  ought  to  be  interpreted  by  i 
contracted  it  shall  be  interpreted. 
Curry,  13  Bush  (Ky.),  312.     1877. 


uit  the  law  would 
n  in  the  contract 

■v  ourts  as  they  have 
nners'  Ins.  Co.  v. 


§  62.  The  words  "his"  or  "their"  used  in  a  policy, 
as  descriptive  of  the  property  of  the  assured,  do  not  ren- 
der policy  void  if  insured  has  an  insurable  interest,  al- 
though such  interest  may  be  a  qualified  or  defeasible,  or 
even  an  yquitable  interest.  Fowle  v.  Springfield  Ins.  Co. 
122  Mass.  19J.     1877. 

§  63.  If  application  is  made  a  warranty,  and  contains 
clause  "  that  the  foregoing  is  a  just,  full,  and  true,  exposi- 
tion of  all  the  facts  and  circumstances  in  regard  to  the 


WARRANTY  AND  REPRESENTATION. 


:hougli 


305 


condition,  situation,  value,  and  risk  of  the  property  to  be 
insured,  so  far  as  the  same  are  Icnoivn  to  the  applicant  and 
are  material  to  the  rishj''  the  words  italicised  limit  what 
precedes,  and  knowledi^e  and  materiality  are  proper  ques- 
tions for  the  jury.  Kerr  v.  Hastings  Mutual  Ins.  Co.  41 
Up.  Can.  Q.B.  217.     1877. 

§  64.  A  warranty  may  be  created  by  reference  to  an 
application  made  to  another  company,  if  such  be  the  in- 
tention of  the  parties.  Whitlaw  v.  Phoenix  Ins.  Co.  28 
Up.  Can.  C.  P.  53.     1877. 

§  65.  Assured  cannot  defeat  a  written  representation 
in  warranty  by  a  simple  denial  on  his  part  that  it  was  in 
fact  made.  Evidence  that  the  application  was  never  read 
to  him  is  not  allowed  to  vary  the  legal  effect  of  the  con- 
tract. Southern  Mutual  Ins.  Co.  v.  Yates,  28  Grat.  585. 
1877. 

§  66.  A  representation  of  ownership  is  not  rendered 
false  by  the  existence  of  an  equitable  title.  Farmers'  Mu- 
tual Fire  Ins.  Co.  v.  Fogelman,  35  Mich.  481.     1877. 

§  67.  When  policy  contains  a  provision  that  any  un- 
true statement  shall  avoid  it,  it  is  vitiated  by  any  false 
statement  of  fact,  whether  material  or  not.  Farmers'  Ins. 
Co.  V.  Curry,  6  Ins.  L.  J.  733.     1877.     Ky. 


§ 


68. 


A  representation  that  other  companies  upon 
the  same  risk,  had  reduced  the  rate  of  premium,  is  no 
ground  for  evading  the  policy  if  company  has  already  ac- 
cepted the  risk  upon  its  own  judgment,  such  misrepresen- 
tation having  the  effect  only  of  inducing  them  to  take  a 
lower  rate  of  premium.  Canada  Fire  Ins.  Co.  v.  Northern 
Ins.  Co.  2  Tupper,  377.     1878. 

§  69.  When  condition  provides  that  "  if  the  assured 
shall  cause  the  property  to  be  described  in  the  policy  oth- 
erwise than  it  really  is,  so  that  a  lower  premium  shall  be 
charged,  tlie  policy  shall  be  of  no  force."  To  accomplish 
such  result  the  misrepresentation  must  have  been  opera- 
tive to  cause  the  insurance  to  be  effected  at  a  lower  pre- 
miuni  than  it  otherwise  would  be  subject  to ;   and  that 


;<■;■  s 


I 


14 


36(5 


WAREANTY  AND  BEPRE8ENTATI0N. 


M  i 


question  is  properly  left  to  the  jury.    Franklin  Fire  Ins. 
Co.  V.  Martin,  11  Vroom,  N.  J.  L.  K.  568.     1878. 

§  70.  A  false  representation  cannot  be  predicated  up- 
on an  expression  of  opinion  by  a  broker.  Jury  were 
charged  that  if  representation  made  by  broker  was  an  ex- 
pression of  opinion  and  not  a  positive  statement  of  fact, 
plaintiff  was  entitled  to  recover.  Held^  correct.  Standard 
Oil  Co.  V.  Amazon  Ins.  Co.  14  Hun,  619. 

§  71.  Description  of  use  and  occupation  in  a  policy  is 
a  warranty.  Franklin  Fire  Ins.  Co.  v.  Martin,  11  Vroom, 
N.  J.  L.  R  568.  1878.  Texas  Ins.  Co.  v.  Stone,  49  Texas, 
4.     1878. 

§  72.  Policy  insured  plaintiff  "  on  his  frame  dwelling- 
house."  The  answer  in  substance  alleged  that  the  plaintiff 
agreed  and  warranted  that  the  building  was  and  should 
be  occupied  as  a  dwelling-house,  and  for  no  other  purpose, 
and  that  plaintiff  used  and  occupied  the  building  at  the 
time  he  procured  the  policy  and  afterward,  as  a  boarding- 
house  and  hotel,  and  that  policy  was  thereby  rendered 
void.  No  change  in  occupation  was  alleged.  Evidence 
offered  that  the  building,  after  the  date  of  the  policy,  was 
occupied  as  a  hotel  without  the  consent  of  the  defendant 
Meld,  that  such  evidence  was  properly  excluded  under  the 
issue  as  created  by  the  answer.  That  if  defendant  had 
wished  to  avail  itself  of  defense  founded  on  an  increase  of 
risk,  it  should  have  been  properly  pleaded.  Pierce  v.  Co- 
hasset  Mut.  Fire  Ins.  Co.  123  Mass.  572.     1878. 

§  73.  No  technical  words  or  form  of  expression  are 
necessary  to  constitute  a  warranty.  Words  of  affirmation 
or  statements  imputing  conditions  or  undertaking  on  the 
part  of  the  assured  relating  to  a  risk  or  affecting  its  char- 
acter or  extent,  upon  which  it  must  be  inferred  the  insur- 
er contracted,  will  ordinarily  bo  construed  and  held  to  be 
a  warranty.    Texas  Ins.  Co.  v.  Stone,  49  Tex.  4.     1878. 

§  74.  Policy  "  warranted  a  family  to  live  in  said  house 
throughout  the  year."  Trial  court  was  asked  by  defendant, 
upon  plaintiff's  evidence,  to  charge  the  jury  that  "  the  oc- 


WABBANTY   AMD  REPRESENTATION. 


367 


''ire  Ina. 


was 


cnpation  of  the  premises  by  two  bird  nen  in  plaintiff's 
employ,  who  took  their  meals  and  were  employed  during 
the  day  on  other  premises,  but  slept  in  th«  insured  prenT- 
ises  at  night,  assured  and  his  wife  and  children  being 
absent,  was  not  such  an  occupation  of  the  premises  as  com- 
plied with  the  warranty,"  which  was  refused.  Held,  er- 
ror ;  that  court  should  have  charged  as  requested,  and  that 
the  evidence  did  not  sustain  finding  by  jury  of  compliance 
with  the  warranty.  Poor  v.  Humboldt  Ins.  Co.  125  Mass 
274.     1878. 

§  75.  Property  was  described  in  the  policy  as  Ids  (the 
assured's)  property.  Proof  was  that  the  insured  had  con- 
tracted to  purchase  the  property,  and  had  paid  all  of  the 
purchase-money  except  $2,000 ;  that  by  his  solicitation  a 
third  party  advanced  for  him  that  amount  and  the  convey- 
ance was  made  by  the  owner  to  such  party  who  gave  to 
the  assured  an  agreement  in  writing  to  convey  to  nim  on 
repayment  of  the  sum  advanced ;  that  the  assured  had  re- 
paid the  money  advanced  before  the  policy  was  issued,  and 
had  been  in  the  exclusive  possession  and  control  of  the 
property  from  the  time  of  the  conveyance  to  such  third 
party,  and  had  expended  a  considerable  sum  in  improve- 
ments. Held,  that  the  insured  had  an  insurable  interest, 
and  that  by  the  description  of  the  property  as  "  his,"  there 
was  no  such  misrepresentation  or  breach  of  warranty  as  to 
avoid  the  policy,  there  being  no  condition  in  it  requiring 
the  true  state  of  the  title  to  be  disclosed.  Franklin  Fire 
Ins.  Co.  V.  Martin,  11  Vroom,  N.  J.  L.  R.  668.     1878. 

§  76.  Misrepresentation  is  not  available  as  a  defense 
when  the  company  at  the  time  has  knowledge  of  the  facts. 
A  different  rule  prevails  with  respect  to  warranty,  in 
which  case  if  there  is  any  fact  not  complied  with  the  con- 
tract falls  without  regard  to  the  knowledge  of  the  com- 
Eany.  Franklin  Fire  Ins.  Co.  v.  Martin,  11  Vroom,  N.  J. 
,.  li.  568.     1878. 

§  77.  Warranties  must  be  true  at  the  time  of  the  de- 
livery of  the  policy.  Biumer  v.  Phoenix  Ins.  Co.  45  Wis. 
622.     1878. 


.'A 


w 

5'i» 


f-M 


I 


388 


WARRANTY  AND  REPRESENTATION. 


§  78.  When  application,  made  a  warranty,  contains  a 
question  as  to  whether  there  was  any  danger  of  an  incen- 
diary fire  which  is  answered  in  the  negative,  and  the  evi- 
dence  on  the  trial  shows  the  answer  to  be  untrue,  plaintiff 
cannot  recover.  Herbert  v.  Mercantile  Fire  Ins.  Co.  43 
Up.  Can.  Q.  B.  384.     1878. 

§  79.  Policy  read  "  as  per  application  on  file,  No.  1234." 
No  such  application  was  ever  sent  to  defendant,  or  was  on 
file  in  its  office.  It  appeared  that  an  application  of  that 
description,  signed  by  plaintiflF.  M'^as  on  file  with  defendant's 
agent,  who  issued  policy  in  suit,  and  that  it  was  sent  to 
same  agent  in  regard  to  another  application  made  some 
time  previously,  upon  which  a  policy  was  issued  by  an- 
other company,  which  had  expired,  and  in  place  of  which 
policy  in  suit  was  issued.  Upon  back  of  the  application 
was  a  diagram,  assumed  to  have  been  made  by  the  agent, 
showing  location  of  building  insured.  The  only  applica- 
tion made  by  assured  was  by  a  letter  requesting  insurance 
in  good  company  without  any  reference  to  previous  appli- 
cation. Reference  in  policy  appeared  to  have  been  made 
by  the  agent  upon  his  own  motion.  Held^  that  there  was 
no  warranty  created ;  and  that  even  if  application  could  be 
regarded  as  obligatory,  the  diagram,  not  purporting  to  have 
been  made  by  assured,  and  there  being  no  proof  that  he  ever 
saw  or  had  anything  to  do  with  it,  was  not  binding.  Vilas 
V.  N.  Y.  Central  Ins.  Co.  72  N.  Y.  590.  1878.  Affi'g  9 
Hun,  121. 

§  80.  Application  was  made  a  warranty  and  contained 
the  following :  "  Q.  What  is  your  title  to,  or  interest  in, 
the  property  \  Ayib.  Deed."  Held^  that  the  answer  did 
not  import  an  unqualified  grant  in  fee  of  a  freehold  estate ; 
that  any  interest,  having  its  origin  in  a  deed,  and  based 
primarily  upon  it,  would  prevent  answer  from  being  re- 

Sarded  as  untrue  so  as  to  constitute  a  breach  of  warranty. 
Eerrill  v.  Agricultural  Ins.  Co.  73  N.  Y.  452.  1878. 
Affi'g  10  Hun,  428.  s.  p.  Dacey  v.  Agricultural  Ins.  Co. 
21  Hun,  83.     1880. 

§  81.  Application  made  a  warranty  contained  follow- 
ing:   "Is   property   encumbered;    if  so,   state   amount? 


"WARRANTY  AND  REPRESENTATION. 


369 


Ans.  No  raorg  jiulgment."  At  time  of  issue  of  policy 
there  were  nine  ju'^lginents  against  the  assured.  Company 
claimed  answer  to  mean  "  no  mortgage  and  no  judgments." 
The  assured,  on  the  other  hand,  claimed  that  it  meant  "  no 
mortgage  but  judgments."  Testimony  that  company's 
agent  was  correctly  advised  of  the  facts  and  had  errone- 
ously written  the  answer,  was  excluded.  Held^  error; 
that  the  answer  was,  at  least,  ambiguous,  and  that  the 
testimony,  if  it  had  been  received,  might  have  satisfied 
the  trial  court  that  the  claim  of  the  assured  was  correct, 
and  if  so,  it  would  have  comported  with  the  answer  as- 
sured alleged  he  gave.  Smith  v.  Farmers'  lus.  Co.  8  Ins. 
L  J.  828.     1879.    Pa. 

§  82.  Application  was  made  a  warranty.  It  con- 
tained a  question  as  follows :  "  Title.  Is  your  title  to  or 
interest  in  this  property  absolute ;  if  not,  state  its  nature 
and  amount,  name  interest  and  amount  of  others  con- 
cerned?" Ans.  "Yes."  In  fact,  the  assured  had  no  ab- 
solute inheritable  interest.  He  was  neither  a  tenant  in 
common  nor  an  ordinary  joint  tenant.  It  was  held  by  him 
and  his  wife  under  same  deed,  and  upon  his  death  went 
by  survivorship  to  his  wife.  Held,  that  policy  was  avoided 
by  the  false  statement  in  regard  to  title,  ^tna  Ins.  Co. 
V.  Resh,  40  Mich.  241.     1879. 

§  83.  Application  contained  question  whether  the 
stoves,  funnels,  flues,  <fec.,  employed  for  heating  or  using 
fire,  are  properly  secured,  to  which  the  answer  was  "  none." 
Held,  that  the  word  none  meant  that  there  were  no  stoves, 
funnels,  flues,  «fec.,  employed  for  heating  or  using  fire,  and 
not  that  there  was  no  stove  on  the  vessel,  used  or  unused. 
Lyon  V.  Stadacona  Ins.  Co.  44  Up.  Can.  Q.  B.  472.    1879. 

§  84.  A  warranty  that  the  adjoining  buildings  within 
eight  rods  are  used  for  the  purpose  of  a  private  dwelling, 
the  survey  on  back  of  the  application  showing  a  vacant 
lot  between  the  property  insured  and  a  neighbor's  house, 
and  no  mention  being  made  in  the  application  or  survey 
of  a  carpenter  shop,  when,  in  fact,  a  carpenter  shop  stood 
directly  in  the  rear  of  the  house  in  very  close  proximity 

Vol.  II.— 34 


:1l 


370 


WABBANTT  AND  REPRESENTATION. 


to  it.  Held^  that  there  was  a  breach  of  the  warranty,  and 
that  the  legal  eifect  of  such  breach  in  the  voiclance  of  the 
insurance  was  not  removed  by  the  fact  that  the  shop  had 
ceased  to  be  used  as  a  shop  before  the  insurance,  and  was 
to  be  removed  and  used  as  a  dwelling,  which  was  done 
soon  after  the  insurance  was  obtaine<l.  Pottsville  Mut. 
Fire  Ins.  Co.  v.  Horan,  89  Pa.  438.     1879. 

§  85.  When  policy  covers  specific  amounts  upon  the 
building  and  personal  property,  a  breach  of  warranty  in 
connection  with  the  building  only  avoids  the  entire  policy. 
Schumitsch  v.  American  Ins.  Co.  48  Wis.  26.     1879. 

§  86.  A  false  statement  in  relation  to  encumbrance 
made  a  warranty,  is  a  breach  thereof  and  avoids  the  insur- 
ance.   Schumitsch  V.  American  Ins.  Co.  48  Wis.  26.    1879. 

§  87.  Creation  of  a  warranty  does  not  depend  upon 
the  use  of  that  word.  Kedman  v.  Hartford  Fire  Ins.  Co. 
47  Wis.  89.     1879. 

§  88.  Application  made  a  warranty  contained  the 
following :  "  Q.  What  material  is  used  for  lubricating  or 
oiling  the  bearings  or  machinery?  A.  Lard  and  sperm 
oil.  Q.  Is  the  machinery  regularly  oiled ;  if  so,  by  whom 
and  how  often  ?  A.  Yes  ;  by  engineer  and  miller,  as  often 
as  necessary."  During  the  continuance  of  the  policy  an 
oil  known  as  "  engine  oil "  was  constantly  used  for  oiling 
purposes,  and  the  machinery  was  not  usunlly  oiled  by  the 
enginear  or  miller,  but  by  another  person  specially  em- 
ployed by  the  assured  for  that  purpose.  Application  also 
contained  a  clause  that  it  contained  a  just,  full  and  true 
exposition  of  all  the  facts  and  circumstances  in  regard  to 
the  condition,  situation,  value  and  risk  of  the  property,  so 
far  as  the  same  are  known  to  the  applicant  and  are  mate- 
rial to  the  risk.  Held^  that  the  last  clause  qualifies  and 
limits  that  which  precedes,  and  that  the  contract  could 
not  be  declared  void  unless  it  was  made  to  appear  not 
only  that  the  application  contained  some  false  statements 
of  facts,  but  that  the  insured  knew  it  to  be  false,  and  that 
the  same  was  material  to  the  risk,  and  so  for  as  any  prom- 
issory CI  continuing  statement  or  undertaking  was  con- 


mty,  and 
ce  of  the 
shop  had 
and  was 
vas  done 
iUe  Mut. 


upon  the 
rranty  in 
re  policy. 
79. 

imhrance 
ihe  insur- 
6.    1879. 

nd  upon 
}  Ins.  Co. 


ined  the 
eating  or 
id  sperm 
\)y  whom 
,  as  often 
policy  an 
for  oiling 
id  by  the 
ially  em- 
ition  also 
and  true 
regard  to 
>perty,  so 
are  mate- 
lifies  and 
ict  could 
)pear  not 
atements 
and  that 
ny  prom- 
was  con- 


WARRANTY  AND  REPRESENTATION. 


371 


cerned,  true  when  made  hut  afterwards  departed  from,  it 
must  appear  that  tlie  change  increased  tlie  risk.  Redman 
V.  Hartford  Fire  Ins.  Co.  47  Wis.  89.     1879. 

§  89.  Application  made  a  warranty  contained  ques- 
tion as  follows :  "  Is  your  property  encumbered,  by  what, 
to  whom,  and  what  amount  ? "  Ans.  "  Vendor's  lien  of 
about  $3,500."  The  wife  of  the  vendor  had  a  contingent 
right  of  dower  in  the  property.  Held,  that  this  was  not 
such  an  encumbrance  as  to  constitute  a  breach  of  warranty, 
and  policy  cannot  bo  avoided  upon  the  ground  of  conceal- 
ment or  omission  to  state  such  fact.  Southern  Mut.  Ins. 
Co.  V.  Kloeber,  31  Grat.  739.     1879. 

§  90.  When  a  question  in  an  application  calls  for 
title  or  interest,  and  the  answer  is  "  fee  simple,"  made  a 
warranty  the  fact  that  the  wife  of  the  assured's  vendor 
has  a  contingent  right  of  dower,  does  not  constitute  a 
breach.  Southern  Mut.  Ins.  Co.  v.  Kloeber,  31  Grat.  739. 
1879. 

§  91.  Policy  contained  provision  as  follows:  "As- 
sured hereby  covenants  that  the  representation  given  in 
the  application  for  this  insurance  contains  a  just,  full  and 
true  exposition  of  all  the  facts  and  circumstances  in  regard 
to  the  condition,  situation,  value  and  risk  of  the  property 
insured,  and  that  if  any  material  fact  or  circumstance  shall 
not  have  been  fairly  represented,"  it  shall  be  void.  Upon 
the  trial  the  judge  instructed  the  jury,  that  if  the  repre- 
sentations in  regard  to  the  painting  insured  were  falsely 
and  fraudulently  made  and  relied  on  by  the  insurer,  and 
were  untrue,  it  would  void  the  policy,  and  that  mere  ex- 
pressions of  opinion  and  belief  were  not  to  be  taken  as 
misrepresentations  of  fact.  Held,  no  error.  Wood  v.  Fire- 
men's Ins.  Co.  126  Mass.  316.     1879. 

§  92.  A  representation  that  there  is  a  solid  brick  fire- 
wall between  each  store  in  the  building  is  one  material  to 
the  risk.  Sowden  v.  Standard  Ins.  Co.  44  Up.  Can.  Q.  B. 
95.     1879. 

§  93.  Assured  is  not  bound  by  a  statement  which  he 
did  not  make  and  did  not  intend  to  make,  but  which  he 


:i 


III  I 


11 


i 


i 


. 


■I'.i% 


In 


372 


WARRANTY  AND  REPRESENTATION. 


I  ^ 


was  induced  to  sign  by  the  fraud  of  company's  agent.  In 
such  case  the  assured  may  show  the  facts  by  parol  evi- 
dence, and  prevent  the  effect  ot  a  breach  of  warranty. 
Eilenberger  v.  Pioteetive  Mut.  Fire  Ins.  Co.  89  Pa  404. 
1879. 

§  94.  When  application  made  a  warranty  contains  a 
statement  that  property  is  encumbered  to  the  amount  of 
$2,000,  when,  in  fact,  there  is  a  mortgage  of  $3,400,  there 
is  a  breach  avoiding  policy  by  the  terras  of  the  contract. 
Byers  v.  Ins.  Co.  35  Ohio,  606.     1880. 

§  95.  Company  cannot  avail  itself  of  any  breach  of 
warranty  to  defeat  an  action  brought  upon  an  agreement 
to  pay  the  loss  made  after  the  loss  has  occurred,  and  after 
the  company  has  had  opportunity  to  investigate  the  facts 
and  circumstances  without  any  interference,  deception  or 
fraud  practiced  by  the  insured  at  the  time  of  the  investi- 
gation. Stache  V.  St.  Paul  Fire  Ins.  Co.  49  Wis.  89.  1880. 
s.  p.  Smith  V.  Glen's  Falls  Ins.  Co.  62  N.  Y.  85. 

§  96.  The  application  for  a  renewal,  without  notice 
of  any  change  in  the  risk,  is,  in  legal  effect,  a  warranty  on 
part  of  assured  tliat  no  change,  substantially  increasing 
the  risk,  has  taken  place,  policy  containing  usual  condi- 
tion in  regard  to  renewal.  Brueck  v.  Phoenix  Ins.  Co.  21 
Hun,  542.     1880. 

§  97.  A  broker  applied  for  insurance  with  a  paper  in 
his  hand  which  he  used  in  describing  the  risk  and  answer- 
ing questions.  The  president,  to  whom  the  application 
was  made,  asked  for  a  copy  of  this  paper,  which  had  been 
made  by  the  broker  two  years  previously  to  obtain  insur- 
ance upon  the  same  risk  from  another  company.  It  con- 
sisted of  a  plan,  with  statements  in  relation  to  the  risk. 
Copy  was  accordingly  sent  to  defendant  and  policy  was 
issued,  which  stated  situation,  cfec,  "  as  per  plan  filed  in 
office  of  M.  P.  Kollins  (the  broker),  a  copy  of  which  is 
filed,  No.  168,732,  in  this  office."  Policy^  provided  that 
"  the  application,  survey,  plan  or  description  of  property 
referred  to  in  this  policy,  shall  be  a  warranty,  «fec."  A 
force  pump  was  shown  upon  the  plan  so  referred  to. 
ileld^  that  the  application  was  oral ;  that  the  leference  to 


agent.    In 

parol  evi- 

warranty. 

^9  Pa  404. 

contains  a 

amount  of 

,400,  there 

le  contract. 

breach  of 
agreement 
,  and  after 
;e  the  focts 
jception  or 
he  investi- 
89.    1880. 

lout  notice 
arranty  on 
increasing 
i^ual  condi- 
Ins.  Co.  21 

a  paper  in 
nd  answer- 
ipplication 
1  had  i)eeu 
)tain  insur- 
y.  It  con- 
3  tlie  risk, 
policy  was 
fin  filed  in 
f  which  is 
vided  that 
f  property 
Y,&cr  A 
eferred  to. 
eference  to 


WARRANTY  AND  REPRESENTATION. 


373 


the  plan  did  not  make  it  a  warranty  in  reference  to  the 
pump.  That  the  reference  to  the  plan  was  like  the  ordi- 
nary reference  in  a  deed  for  the  purpose  of  identifying  the 
subject-matter,  and  ha**  a  similar  meaning.  Albion  Lead 
Works  V.  Williamsburg  City  Ins.  Co.  9  Ins.  L.  J.  435. 
1880.     U.  S.  Circuit,  Mass. 


8  98. 


§  vo.  Party  in  possession  of  insured  premises  under 
a  valid  subsisting  contract  of  purchase  is  the  equitable 
owner,  and  has  an  insurable  interest,  although  he  has  not 
paid  the  whole  consideration.  He  is  not  guilty  of  misrep- 
resentation, if  he  represents  the  house  as  his,  and  there  is 
no  breach  of  warranty  if  house  is  described  in  policy  as 
•'his  dwelling-house."  Rumsey  v.  Phcenix  Ins.  Co.  17 
Blatch.  527.     1880. 

§  99.  Representation  was  that  the  mortgage  was  only 
$2,000.  The  truth  was  that  it  was  $3,440,  including  $240 
of  accrued  interest.  Held,  a  representation  material  to 
the  risk.  Byers  v.  Farmers'  Ins.  Co.  9  Ins.  L.  J.  743.  1880. 
Ohio. 

§  100.  Application  made  a  warranty  contained  the 
^' Uowing  question  and  answer :  "  For  what  purpose  used. 
State  fully  ?  A71S.  Dwelling."  Held,  that  the  question 
did  not  call  for  the  present  as  distinguished  from  the  ap- 
propriate use  of  the  building.  That  the  answer  was  de- 
scriptive, not  of  any  present  occupation  or  actual  use,  but 
simply  of  the  class  or  character  of  the  building.  Wood- 
ruff V.  Imperial  Fire  Ins.  Co.  83  N.  Y.  133.     1880. 

§  101.  A  representation  as  to  a  mortgage  made  a 
warranty  if  untrue  avoids  the  policy,  and  it  is  not  proper 
to  leave  Question  of  materiality  to  the  jury.  Marshall  v. 
Times  Fire  Ins.  Co.  4  Allen,  N.  B.  618.  1860.  s.  p.  Byers 
V.  Farmers'  Ins.  Co.  9  Ins.  L.  J.  743.     1880.     Ohio. 

§  102.  A  false  representation  of  encumbrance  by 
mortgage  upon  tlie  property  insured  is  material  to  the 
risk.  Ryan  v.  Springfield  Fire  Ins.  Co.  46  Wis.  671. 
1879.    Byers  v.  Ins.  Co.  35  Ohio,  606.     1880. 


' ' 

% 


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r. 


1  :i; 


374 


WARRANTY  AND  REPRESENTATION. 


;  ( 

i 


§  103.  When  wife  insuring  her  own  building  in 
which  she  lived  and  controlled,  and  regarded  herself  as 
did  the  agent  of  the  company,  as  the  owner  of  the  house- 
hold goods,  her  representation  as  to  the  latter,  although 
not  in  a  legal  sense  true,  Held,  not  material  to  the  risk. 
Continental  Ins.  Co.  v.  Ware,  9  Ins.  L  J.  519.     1880.    Ky. 

§  104.  Application  made  a  warranty  contained  the 
following:  "Is  there  any  encumbrance  by  mortgage  or 
otherwise,  and  for  what  amount  ? "  ^^Ans.  Yes,  12,500." 
Policy  was  dated  March  6,  1876.  The  mortgage  was  for 
$2,500,  and  all  the  interest  due  had  heen  paid  ;  but  the  in- 
terest thereon  running  from  December  27,  1875,  was  un- 
paid. Held,  that  the  representation  as  to  amount  was 
substantially  true,  and  that  there  was  no  breach  of  war- 
ranty.    Titus  V.  Glen's  Falls  Ins.  Co.  81  N.  Y.  410.     1880. 

§  105.  By  Mass.  statute  (L.  18G4  c.  196)  warranty 
cannot  be  created  by  a  reference  in  policy.  The  statements 
or  representations  relied  upou  must  be  stated  in  body  of 
policy.  Wheeler  v.  Watertown  Fire  Ins.  Co.  10  Ins.  L.  J. 
354.     1881.     Mass. 

§  106.  A  statement  in  policy  that  building  is  used 
for  storage  of  ice  is  not  a  warranty  that  ice  is  there  stored 
when  policy  is  written.  Dolliver  v.  St.  Joseph  Fire  Ins. 
Co.  10  Ins.  L.  J.  380.     1881.    Mass. 

§  107.  Knowledge  by  the  company  or  its  agent  and 
the  assured  of  the  breach  of  a  warranty  at  time  it  is  made, 
does  not  relieve  the  assured  from  the  consequences  of  the 
breach,  and  is  no  basis  for  reformation  of  the  policy,  unless 
there  be  a  mutual  mistake  as  to  facts.  The  purpose  in  re- 
quiring a  warranty  is  to  dispense  with  inquiry  and  cast 
upon  the  assured  the  obligation  that  the  facts  shall  be  as 
represented.  That  which  is  a  warranty  in  a  policy  cannot 
be  shown  by  parol  evidence  to  have  been  inserted  by  mis- 
take. Where  the  answer  in  a  written  application,  and  a 
warranty,  is  written  by  agent  as  made,  there  is  no  mutual 
mistake  and  no  relief  for  assured,  unless  agent  is  guilty  of 
fraud  in  deceiving  hira  into  making  it.  Commonwealth 
Fire  Ins.  Co.  v.  Huutzinger,  10  Ins.  L.  J.  618.     1881.     Pa. 


WARRANTY  AOT)  REPRESENTATION. 


375 


ildinor  in 
herself  as 
he  house- 
although 
the  risk. 
B80.     Ky. 

lined  the 
rtgage  or 
,  $2,500." 
e  was  for 
ut  the  ill- 
was  un- 
ount  was 
1  of  war- 
0.     1880. 

warranty 

tatements 

body  of 

Ins.  L.  J. 


^  18  used 
jre  stored 
Fire  Ins. 


§  108.  Assured  was  bound  by  terms  of  the  policy  to 
"  use  only  lard  and  tallow,  or  sperm  or  lard  oils  for  lubri- 
cating, and  to  keep  a  force-pump  on  the  premises,  with  a 
proper  supply  of  good  hose  on  hand."  Held,  that  to  make 
a  forfeiture  the  breach  must  be  a  substantial  one.  That 
if  the  assured,  in  usual  course  of  business,  ordered  lard  and 
sperm  oil  for  lubricating  purposes,  and  believed  they  ob- 
tained and  were  using  what  they  ordered,  and  if  the  oil 
used  contained  lard  and  sperm  oil  and  (although  com- 
pounded with  a  product  of  petroleum)  was  equally  as  good 
and  safe  as  pure  lard  and  sperm  oil,  there  is  no  substantial 
breach  of  the  condition  as  to  lubricators.  That  the  ques- 
tion as  to  whether  there  was  a  proper  supply  of  hose  or 
not,  should  be  submitted  to  the  jury.  Copp  v.  German 
American  Ins  Co.  51  Wis.  637.     1881. 

§  109.  Statement  in  policy  that  building  is  "situate 
detached  100  feet "  is  a  warranty  that  it  is  distant  100  feet 
from  any  building.  Burleigh  v.  Gebhard  Ins.  Co.  12  N. 
Y.  Weekly  Dig.  235.     1881. 

See  Agent,  §  101.  Application,  8,  13.  Cancellation,  22.  Description,  4. 
Encumbrance,  21.  Estoppel,  12,  14,  23.  Fraud  and  False  Swearing,  4. 
Mutual  Company,  111.  Other  Insurance,  37.  Overvaluation,  3.  Pleading 
and  Practice,  4,15,  2»,  31.  Questions  for  Court  and  Jury,  3,  4,  17.  Refor- 
mation, 11.  Risk,  b,  12,  13,  20,  24.  Title,  8, 43,  44,  50.  Usage  and  Custom, 
10.    Waiver,  40,  50.    Watchman. 


\m 


,*'<t! 


gent  and 
b  is  made, 
les  of  the 
cy,  unless 
ose  in  re- 
mand cast 
all  be  as 
3y  cannot 
1  by  mis- 
3n,  and  a 
0  mutual 
guilty  of 
3n  wealth 
181.     Pa. 


.i 


1  ', 


II 


WATCHMAN. 

§  1.  Survey  was  made  part  of  policy  and  contained 
the  following :  *'  Watchman.  Is  one  kept  in  the  mill  or 
on  the  premises  during  the  night  and  at  all  times  when 
the  mill  is  not  in  operation,  or  when  the  workmen  are  not 
present  ?  Ans.  Yes."  Upon  the  day  previous  to  destruc- 
tion of  the  property  by  fire,  the  sheriff  levied  an  execution 
against  the  assured  upon  the  personal  property  in  the 
building  (mill),  and  excluded  their  employees  therefrom, 
took  the  keys  and  locked  up  the  building.  The  deputy 
sheriff  and  one  of  the  trustees  of  the  assured  remained  in 
the  office  of  the  company,  a  building  about  two  rods  from 
the  mill,  during  the  night  and  until  discovery  of  the  fire. 
Held,  survey  to  be  a  warranty  and  that  there  was  a 
breach.  Tliat  the  levy  did  not  affect  the  obligation  to 
perform  the  warranty,  and  that  the  sheriff  and  trustee  were 
not  watchmen  within  the  meaning  of  the  warranty.  First 
Nat.  Bank  of  Ballston  v.  Ins.  Co.  of  N.  A.  50  N.  Y.  45. 
1872. 

§  2.  The  distillery  premises  insured  consisted  of  the 
distillery,  the  bonded  warehouse,  scales,  corn-crib,  cooper- 
shop,  two  tenement-houses,  an  office  179  feet  from  the  dis- 
tillery, where  grain  was  purchased,  books  kept,  and  the 
general  business  transacted.  The  office  was  not  covered 
by  the  policy,  but  was  known,  used  and  recognized  as  part 
of  the  distillery  property.  Plaintiff'  had  a  day  and  night 
watchman.  The  night  man  usually  occupied  the  office. 
On  niglit  fire  occurred  he  was  around  the  premises  until 
about  eleven  o'clock,  when  he  went  into  the  office  and 
went  to  sleep.  Between  one  and  two  o'clock  he  discov- 
ered the  fire.  Clause  in  policy  as  follows :  "  a  watchman 
to  be  on  the  premises."  Held,  a  substantial  and  sufficient 
compliance  with  terms  of  contract  in  reference  to  watch- 
man.    Andes  Ins.  Co.  v.  Shipman,  77  111.  189.     1875. 

§  3.  Application  made  a  warranty,  contained  the  fol- 
lowing :  "  Is  there  a  watchman  kept  on  the  premises  at 


contained 
;he  mill  or 

mes  when 
en  are  not 
to  destruc- 

execution 
'ty  in  the 
therefrom, 
he  deputy 
imained  in 

rods  from 
>f  the  fire, 
ire  was  a 
igation  to 
ustee  were 
ity.  First 
i  N.  Y.  45. 


bed  of  the 
ib,  cooper- 
m  the  dis- 
i,  and  the 
>t  covered 
ed  as  part 
and  night 
the  office. 
lises  until 
office  and 
he  discov- 
>vatchinan 
sufficient 
to  watch- 
1875. 

d  the  fol- 
emises  at 


WATCHMAN. 


377 


night  and  at  all  other  times  when  works  are  not  in  opera- 
tion,  or  when  the  workmen  are  not  present  ?  Ans.  Yes." 
Held,  to  be  a  continuing  representation,  and  that  the 
watchman  being  withdrawn  several  weeks  prior  to  fire 
constituted  a  breach  of  warranty.  Whitlaw  v.  Phoenix 
Ins.  Co.  28  Up.  Can.  C.  P.  53.     1877. 

§  4.  A  warranty  is  as  much  controlled  by  conditions 
in  the  policy  as  a  representation ;  and  if  by  its  conditions 
the  parties  have  agreed  that  alterations  to  avoid  the  in- 
surance must  be  within  the  control  or  with  the  knowledge 
of  t':  .  assured,  and  such  control  or  knowledge  must  be 
shown  as  an  essential  element  of  a  breach  of  warranty  in 
relation  to  a  watchman  who  by  the  terms  of  the  applica- 
tion made  a  warranty  was  kept  upon  the  premises,  but 
had  been  withdrawn  a  short  time  previous  to  the  fire. 
Worswick  v.  Canada  Fire  Ins.  Co.  25  Grant  Ch.  282. 
1877. 

§  5.  Application  made  a  warranty  contained  the  fol- 
lowing :  Q.  "  Is  there  a  watchman  in  the  mill  during  the 
night ;  is  the  mill  ever  left  alone  ? "  to  which  the  answer 
was,  "no  regular  watchman,  but  one  or  two  hands 
slept  in  the  mill.  Held,  that  this  was  equivalent  to  an 
undertaking  by  the  assured  that  one  or  two  of  his  em- 
ployees lodged  in  the  mill  each  night,  although  they  were 
not  regular  watchmen,  and  furtljer  that  the  same  was  a 
promissory  and  Continuing  undertaking  which  hound  the 
assured  to  a  substantial  compliance  with  its  terms  from 
the  time  the  policy  was  delivered  until  the  mill  and  ma- 
chinery were  burned.  Blumer  v.  Phoenix  Ins.  Co.  45 
Wis.  t)22.     1878.    Id.  48  Wis.  535.     1879. 

See  Agent,  §  85.    Questions  fur  Court  and  Jury,  4. 


Ml 


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I  \  s 

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m 


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WHAT  PROPERTY  IS  COVERED  BY  POLICY. 

§  1.  Policy  covering  oil,  "his  own,  in  trust  or  on  con- 
signment," covers  loss  upon  oil  in  warehouse  for  which 
warehouse  receipts  had  been  given  in  favor  of  one  Ruston, 
and  by  him  assigned  to  the  assured  and  npon  which  the 
assured  had  made  advances  to  Ruston.  Stanton  v.  -^tna 
Ins.  Co.  17  L.  C.  Jurist,  281.     1872. 

§  2.  Cotton  was  stored  in  warehouse  at  various  in- 
tervals, fiictor  receiving  for  each  lot  deposited  warehouse 
company's  receipt  specifying  number  of  bales,  date,  and 
mark  on  bales.  These  receipts  were  numbered ;  that  for 
a  deposit  on  20th  June,  1,221,  and  on  27th  June,  1,238. 
Policies  of  insurance  were  at  once  taken  out  to  cover  par- 
ticular number  of  bales  deposited,  loss  being  made  pay- 
able to  warehouse  company  as  security  for  money  ad- 
vanced. On  one  policy  was  indorsed  in  pencil  in  figures, 
1,221,  and  upon  the  other,  1,238.  Held^  that  the  insur- 
ance was  specific  and  was  intended  to  cover  only  the  spe- 
cific number  of  bales  in  each  deposit.  Hough  v.  Peoples' 
Ins.  Co.  36  Md.  398.     1872. 

§  3.  Policy  insured  a  frame  steam  saw  mill  and  a  spe- 
cific amount  on  "  boiler,  engine,  machinery,  and  belting 
contained  therein."  Tliere  was  a  planing  machine  in  the 
mill  in  a  shed,  on  the  same  floor  with  the  machinery  proper 
of  the  saw  mill,  about  twenty-five  or  thirty  feet  distant, 
but  connected  with  it  by  belting  and  plainly  visible.  Com- 
pany's agent,  previous  to  issue  of  pt)licy,  inspected  the 
premises  with  a  view  to  insuring,  lleld^  that  the  planing 
machine  was  included  in  the  term  "  machinery,"  as  used  in 
the  policy.  James  River  Ins.  Co.  v.  Merritt,  47  Ala.  387. 
1872. 

§  4.  Property  was  described  as  "contained  in  the 
frame  building  known  as  the  Hunt  Building,  situate  in 
Northhampton,  as  per  plan."     At  time  policy  was  issued, 


BY  POLICY. 

I'ust  or  on  con- 
ouse  for  wbicli 
•  of  one  Ruston, 
ipon  which  the 
tanton  v.  -^tna 


at  various  in- 
ited  warehouse 
jales,  date,  and 
)ered;  that  for 
th  June,  1,238. 
it  to  cover  par- 
ing made  pay- 
for  money  ad- 
encil  in  figures, 
that  the  insur- 
i^r  only  the  spe- 
ugh  V.  Peoples' 


mill  and  a  spe- 
y,  and  belting 
machine  in  the 
ichinery  proper 
;y  feet  distant, 
J  visible.  Com- 
inspected  the 
lat  the  planing 
3ry,"  as  used  in 
t,  47  Ala.  387. 


itained  in  the 
ing,  situate  in 
icy  was  issued, 


WHAT  PROPERTY  IS  COVERED  BY  POLICY. 


379 


the  main  floor  was  divided  into  three  stores,  as  shown  on 
the  plan,  assured  occupying  the  west  store,  the  others  by 
other  persons.  At  time  of  fire  assured  occupied  the  whole 
floor,  having  removed  the  partitions.  Company  contended 
that  policy  covered  goods  in  west  store  only.  It  was  not 
shown  or  claimed  that  there  was  any  increase  of  risk. 
Held,  that  language  of  policy  included  all  tliiee  of  the 
stores ;  that  reference  to  the  plan  was  for  the  purpose  of 
showing  situation  of  building  in  reference  to  other  build- 
ings, and  that  assured  was  entitled  to  recover  for  all  loss 
of  or  injury  to  goods,  in  any  part  of  the  building.  Fair  v. 
Manhattan  Ins.  Co.  112  Mass.  320.     1873. 

§  5.  A  company  is  liable  for  loss  of  a  horse,  although 
acquired  after  date  of  policy,  which  insured  "live  stock," 
•«-''     Mills  V.  Farmers'  Ins.  Co.  37  Iowa,  400.     '^''^ 


ifec. 


1873. 


§  6.  Policy  insuring  a  railroad  company  upon  its  wood 
and  logs  cut  and  piled  along  its  line,  does  not  cover  and  in- 
clude such  property  belonging  to  other  persons,  and  set  on 
fire  by  sparks  from  the  locomotives,  and  to  whom  the  rail- 
road company  has  paid  the  value  of  such  property,  it  being 
liable  therefor.  Monadnock  R.  R.  Co.  v.  Manufacturers' 
Ins.  Co.  113  Mass.  77.     1873. 

§  7.  Where  statement  in  proofs  was  "  stock  in  tan- 
nery, hides  and  leather,  $56,500,"  it  was  held  erior  to  as- 
sume that  it  referred  exclusively  to  hides  and  leather. 
Planters'  Mut.  Ins.  Co.  v.  Deford,  38  Md.  382.     1873. 

§  8.  The  word  "  machinery  "  covers  all  instruments 
intended  to  be  operated  exclusively  by  machinery  in  busi- 
ness of  assured,  and  which  are  so  operated  from  time  to 
time  in  regular  and  ordinary  prosecution  of  the  business 
referred  to  in  the  policy.  Movable  dies  worked  by  a  press, 
and  when  not  in  use  deposited  or  kept  on  shelves  apart 
from  the  press,  may  be  included  in  the  term  machineiy. 
Searing  v.  Central  'ins.  Co.  Ill  Mass.  540.     1873. 

§  9.  Policy  insured  $8,350  "on  all  or  either  of  the 
freight  buildings  at  Charlestown."  One  of  them  being 
burnt,  Ildd,  that  company  was  liable  for  full  amount  of 


%: 


Hi 

m 


380 


r 

WHAT  PROPERTY  IS  COVERED  BY  POLICY. 


the  loss  not  exceeding  the  amount  insured.      Common- 
wealth V.  Hide  and  Leather  Ins.  Co.  112  Mass.  136.     1873. 

§  i  0.  Policy  insuring  *'  freight  cars  owned  or  used  hy 
the  railroad  company  "  covers  cars  of  another  road  in  pes. 
session  and  used  of  the  assured.  Commonwealth  v.  Hide 
and  Leather  Ins.  Co.  112  Mass.  136.     1873. 

§  11.  Policy  insured  "  property  in  freight  buildings." 
One  of  its  terms  provided  that  books  and  furniture  "  are 
not  to  be  insured,  unless  by  special  agreement."  There 
were  books  and  furniture  contained  in  the  freight  build- 
ings and  destroyed,  but  they  were  not  specially  insured. 
field,  that  assured  could  not  recover  for  books  and  furni- 
ture. Commonwealth  v.  Hide  and  Leather  Ins.  Co.  112 
Mass.  136.     1873. 

§  12.  Policy  insured  steam  barrel  factory,  manufac- 
tured barrels  and  materials  for  the  same  therein.  It  con- 
tained provision  that  camphene  or  burning  fluid,  coal  oil, 
petroleum,  or  any  of  their  products  by  whatever  name  des- 
ignated, unless  otlierwise  specially  provided  for,  if  used 
company  would  not  be  liable  for  damages  occasioned  by 
such  use.  The  assured,  for  the  purpose  of  storing  and 
painting  empty  barrels,  used  a  certain  portion  of  the  prop- 
erty in  which  at  the  time  of  the  fire  was  a  barrel  of  ben- 
zine, conceded  to  be  one  of  the  products  of  petroleum, 
whicji  was  used  in  their  business.  Held,  that  the  word 
"  materials  "  could  not  be  construed  to  cover  the  benzine 
in  the  absence  of  proof  that  it  was  usually  or  commonly 
used  in  the  manufacture  of  barrels.  The  presumption  as 
to  knowledge  of  company  of  the  use  of  an  article  in  busi- 
ness insured  extends  only  to  such  articles  or  materials  as 
are  necessarily  and  usually  employed  in  connection  with 
such  business.  McFarland  v.  Peai)ody  Ins.  Co.  6  W.  Va 
425.     1873. 

§  13.  A  cellar  wall  is  part  of  a  building  and  covered 
by  insurance  of  the  latter.  Ervin  v.  N.  Y.  Cent.  Ins.  Co 
3  T.  &  C.  (N.  Y.  Supr.)  213.     1874. 

§  14.  Where  policy  covered  ''machinery"  of  a  paper 
mill,  Held,  that  the  word  was  used  in  its  most  comprehen- 


CY. 

Common. 
136.     1873. 

I  or  used  by 
road  in  pos. 
ilth  V.  Hide 


buildings." 
niture  "are 
nt."  There 
'i^iit  build- 
lly  insured. 

and  furni- 
[us.  Co.  112 


f,  m^anufiic- 
in.  It  con- 
lid,  coal  oil, 
ir  name  des- 
for,  if  used 
tasioned  by 
storing  and 
>f  the  prop- 
rrel  of  ben- 
petroleum, 
t  the  word 
•he  benzine 
commonly 
umption  as 
icle  in  l)U8i- 
laterials  as 
3ction  with 
J.  G  W.  Va. 


nd  covered 
nt.  Ins.  Co 

of  a  paper 
comprehen- 


WHAT  PROPERTY  IS  COVERED  BY  POLICY.  381 

sive  sense  and  included  all  the  machinery  and  tlie  tools 
and  implements  used  therewith  in  the  manufacture  of  pa- 
per. Buchanan  v.  Exchange  Fire  Ins.  Co.  61  N.  Y.  26. 
1874. 

§  15.  Policy  covered  household  furniture,  beds,  bed- 
ding, wearing  apparel,  and  family  stores.  One  clause  in 
the  policy  provided  that  the  company  was  not  to  be  liable 
for  loss  on  plate  unless  particularly  specified.  Certain  sil- 
ver forks,  tea  and  tablespoons  being  destroyed  by  fire,  and 
not  being  specified  in  the  policy,  company  claimed  that  it 
was  not  liable  for  their  loss.  Held,  that  such  claim  was 
not  well  founded.  Hanover  Fire  Ins.  Co.  v.  Mannasson,  29 
Mich.  316.     1874. 

§  16.  Policy  covered  a  certain  amount  on  barn,  live 
stock,  and  one  item  covered  $300  on  grain  in  barn  or  in 
stack.  Fire  occurred  by  which  wheat  of  the  value  of  $300 
was  destroyed,  which  was  stacked  upon  laud  in  the  town 
of  Chester,  owned  by  the  assured  when  the  wheat  was 
burned,  but  not  when  the  policy  was  issued.  Application 
upon  which  policy  was  issued  contained  the  following 
specifications :  "In  the  town  of  Chester,  county  of  Dodge, 
State  of  Wisconsin.  Description  of  land  on  which  build- 
ings stand,  Sec.  19,  Town  13,  Range  15."  Held,  that  the 
contract  in  respect  to  the  wheat  in  stack  is  not  limited  to 
that  stacked  within  the  curtilage  of  the  buildings,  nor  to 
wheat  grown  on  Sec.  19,  nor  yet  to  wheat  grown  or 
stacked  on  lands  which  plaintiff  owned  when  the  policy 
issued ;  but  that  it  was  in  terms  an  agreement  to  insure 
against  loss  by  fire  to  his  wheat  in  stack  in  the  town  of 
Chester;  that  defendant  was  liable.  Sawyer  v.  Dodge 
County  Mutual  Ins.  Co.  37  Wis.  503.     1875. 

§  17.  Policy  covered  grain,  flour  and  fixtures  consist- 
ing of  working  tools.  Held,  that  paper  bags  were  not  cov- 
ered by  the  term  "  tools."  Hutchinson  v.  Niagara  District 
Ins.  Co.  39  Up.  Can.  Q.  B.  483.     1876. 

§  18.  Policy  covering  "  stock  of  hair,  wrought,  raw, 
and  in  process,"  does  not  extend  to  fancy  goods  made  of 
other  materials,  although  such  as  are  usually  kept  and  sold 


1  ■■,«, 


'  I' 


m 

T^ 


4;!fi 


li   .fit! 
If  1' 


m 


m 


i  \ 


WHAT  PROPERTY  IS  COVERED  BY  POLICY. 


in  a  retail  hair  store.     Medina  v.  Builders'  Mut.  Ins.  Co. 
120  Mass.  225.     1S7C. 

§  19.  A  heater,  bricked  in,  is  properly  included  in 
estimate  of  value  of  a  buildinjjj.  Adams  v.  Greenwich 
Ins.  Co.  9  Hun,  45.     1876.    Affi'd,  70  N.  Y.  IGti. 

§  20.  The  question  whether  "  boots  and  shoes,  hats  and 
caps,"  are  embraced  in  the  term  "  dry  goods,"  may  be  prop, 
erly  left  to  the  jury,  there  being  evidence  of  usage  and 
custom  and  understanding  of  the  term  in  trade.  Bassell 
V.  American  Fire  Ins.  Co.  2  Hughes,  531.     1877. 

§  21.  Policy  insured  "on  risk  of  hay  in  haggard  at 
rear,  £400.  On  smaller  risk  of  hay  in  said  haggard,  £200." 
Held,  to  apply  only  to  specific  risks  existing  at  date  of 
policy.  Gorman  v.  Hand-in- Hand  Ins.  Co.  Irish  Rep.  11 
C.  L.  224.     1877. 

§  22.  Policy  on  a  "mill"  covers  both  building  and 
effects,  and  movable  machinery  in  it.  Shannon  v.  Gore 
District  Mutual  Fire  Ins.  Co.  2  Tupper,  39G.  1878.  Rev'g 
40  Up.  Can.  Q.  B.  188. 

§  23.  Policy  insuring  "fixed  and  movable  machinery, 
engines,  lathes,  and  tools"  covers  wooden  patterns  which, 
from  their  size  and  shape,  admit  of  being  applied  and 
managed  by  the  hands  of  one  man.  And  such  patterns 
are  covered,  notwithstanding  a  clause  excepting  company 
fi'om  liability  on  "jewels,  plate,  watches,  medah,  patterns, 
sculpture,  casts,  models,  or  curiosities,  unless  particularly 
specified.  Lovewell  v.  Westchester  Ins.  Co.  124  Mass. 
418.     1878. 

§  24.  Policy  describing  property  as  "  his  own  or  held 
by  him  in  trust,"  covers  a  piano  left  with  assured  for  sale 
or  to  rent.     Snow  v.  Carr,  61  Ala.  363.     1878. 

§  25.  Policy  insured  as  follows :  $500  on  their  brick 
pottery  building  and  ells,  three  stories  with  basement  and 
flat  roof;  $500  on  machinery,  shafting,  belting,  machines, 
and  all  implements  used  in  their  business  ;  $9.')0  on  stock 
in  trade,  consisting  principally  of  earthenware,  and  on  ma- 


[CT. 

Tut.  Ins.  Co. 

included  in 

Greenwich 
GO. 

5es,  hats  and 
aay  1)6  prop. 
I  sage  and 
le.     Bassell 

77. 

haggard  at 
?ard,  £200." 

at  date  of 
ish  Rep.  11 

Liilding  and 
lion  V.  Gore 
378.    R 


WHAT  PROPERTY  IS  COVERED  BY  POLICY. 


383 


xevg 


machinery, 
erns  which, 
ipplied  and 
3li  patterns 
ig  company 
Is,  patte7'?is, 
particularly 

124  Mass. 


>wn  or  held 
ed  for  sale 


their  brick 
lement  and 
,  machines, 
0  on  stock 
and  on  ma- 


terials for  manufacturing  the  same ;  $50  on  oflBce  furniture, 
including  safe,  contained  in  said  building,  situate,  &c! 
The  factory  consisted  of  two  large  three-story  brick  build- 
ings, connected  by  a  three-story  wooden  corridor  six  feet 
wide  and  fifteen  feet  long.  One  of  these  buildin<Ts  was 
generally  known  as  the  pottery,  and  had  three  elfs ;  the 
other  was  generally  known  as  the  storehouse.  In  course 
of  manufacture  the  stock  went  to  and  fro  from  each  of  the 
buildings  to  the  others  several  times.  Some  part  of  the 
process  was  conducted  in  the  storehouse.  Jlcfd,  that  the 
words  "  contained  in  said  building,"  &c.,  applied  to  the 
machinery  and  stock  as  well  as  to  the  furniture ;  and  th  jt 
nothing  was  covered  by  the  policy  but  the  "  pottery  build- 
ing "  and  its  contents ;  that  the  storehouse  was  not  in- 
cluded, the  bill  of  exceptions  admitting  that  the  store- 
house was  a  distinct  building.  Hews  v.  Atlas  Ins.  Co. 
12G  Mass.  389.     1879. 

§  26.  The  word  guano  may  be  shown  to  have  been 
intended  to  cover  and  include  fertilizer.  Planters'  Mut. 
Ins.  Co.  v.  Engle,  52  Md.  468.    'l879. 

§  27.  Description  of  property  as  "frame  building,  oc- 
cupied as  a  tannery,"  does  not  include  engine  and  ma- 
chinery.    Sunderlin  v.  ^'Etna  Ins.  Co.  18  Hun,  522.     1879. 

§  28.  Policy  covered  "  electrotypes,  steel  plates  and 
cuts."  It  was  claimed  that  certain  dies  w^ere  covered  by 
the  terms  used.  Held,  that  jury  should  be  instructed  that 
when  words  have  acquired  an  exact  and  technical  meaning 
in  any  trade  or  business,  and  are  used  in  contract  relating 
to  such  business,  prima  facie  they  are  to  be  construed  in 
the  meaning  or  sense  which  they  have  acquired  in  that 
business.  It  is  error  to  charge  jury  that  if  words  have 
both  a  technical  meaning  and  an  ordinary  meaning  they 
should  determine  in  which  sense  the  words  were  used. 
Houghton  V.  Watertown  Fire  Ins.  Co.  10  Ins.  L.  J.  547. 
1881.     Mass. 

§  29.  A  policy  obtained  and  held  upon  a  stock  of 
goods  bequeathed  to  the  assured  by  will,  covers  also  ad- 
ditions to  such  stock  made   in  the  ordinary  and  usual 


1 


% 


n.i 


u 


^1 


WHO  MAT  SUE. 


course  of  trade.  Butler  v.  Standard  Fire  Ins.  Co.  20  Grant 
Ch.  341.  1879.  s.  p.  Policy  covers  additions  to  stock  in 
ordinary  course  of  business.  Bates  v.  Equitable  Ins.  Co. 
3  Cliflf.  215.  1868.  American  Cent.  Ins.  Co.  v.  Roth- 
cbild,  82  111.  166.  1876.  Planters'  Mut.  Ins.  Co.  v. 
Engle,  52  Md.  468.     1879. 

Sec  Agent,  §  6.  Assignment,  14.  Evidence,  16,  25,  63.  Goods  in  Trust, 
1.  Interest  in  Policy,  6.  Parol  Contract.  7.  Questions  for  Court  and  Jury, 
15.  Risk,  3,  10,  lf».  Storing  and  Keeping,  C,  13,  14,  15,  23.  L'sc  aud  Oc- 
cupation, 13. 


WHO  MAY  SUE. 


§  1.  When  loss  is  made  payable  to  a  mortgagee,  he 
may  maintain  an  action  in  his  own  name,  and  is  in  legal 
effect  the  party  insured.  And  he  may  also  furnish  the 
proofs  requii-ed  by  the  policy.  Brush  v.  ^tna  Ins.  Co.  1 
Oldright,  N.  S.  4o9.     1864. 

§  2.  Whore  policy  insures  A.,  "  his  executors,  admin- 
istrators, and  assigns,"  and  assured  has  died  previous  to 
fire,  action  for  the  loss  is  properly  brought  in  name  of  ad- 
ministrator. Germania  Fire  Ins.  Co.  v.  Curran,  8  Kans.  9. 
1871. 

§  3.  It  is  not  necessary  to  make  one  to  whom  loss  is 
payable  party  to  the  action,  which  by  his  consent  may  be 
brought  in  name  of  assured.  Patterson  v.  Triumph  Ins. 
Co.  64  Me.  500.     1874. 

§  4.  Party  to  whom  loss  is  payable  may  maintain  ac- 
tion in  his  own  name.  Chamberlain  v.  Ins.  Co.  55  N.  H. 
249.  1875.  Hadley  v.  Ins.  Co.  55  N.  H.  110.  1875. 
Berthold  v.  Clay  Ins.  Co.  2  Mo.  App.  311.  1876.  State 
Ins.  Co.  V.  Maackens,  9  Vroom,  N.  J.  L.  R  564.  1876. 
Hartford  Fire  Ins.  Co.  v  Olcott,  97  lU.  439.  1881.  See 
§§  12,  14. 


WHO  MAY  SUE. 


385 


!o.  26  Grant 
to  stock  in 
)le  Ins.  Co. 
o.  V.  Roth- 
Ins.   Co.   V. 


3oods  in  Trust, 
iJourt  unci  Jury, 
L'sc  and  Oc- 


rtgagee,  lie 

is  in  legal 

furnish  the 

9  Ins.  Co.  1 


;ors,  admin- 
previous  to 
name  of  ad- 
,  8  Kans.  9. 


lom  loss  is 
ent  may  be 
'iumph  Ins. 

laintain  ac- 
o.  55  N.  H. 
LIO.  1875. 
^76.  State 
•64.  1876. 
1881.    See 


§  5.  Part  owner  of  property  in  whose  name  policy 
for  account  of  all  the  owners  is  issued  becomes  trustee  for 
such  owners,  and  in  case  of  loss  may  sue  on  the  policy  in 
his  own  name  alone.  Knight  v.  Eureka  Fire  Ins.  Co.  26 
Ohio,  664.     1875. 

§  6.  An  action  maybe  maintained  in  the  name  of  the 
assured,  with  or  without  consent  of  the  person  to  whom 
the  loss  is  made  payable,  where  an  insurable  interest  re- 
mains in  such  party  ;  if  in  such  a  case  if  the  company  has 
paid  the  money  to  the  mortgagee  to  whom  the  loss  is  pay- 
able, it  may  plead  the  payment  as  performance.  Martm 
V.  Franklin  Fire  Ins.  Co.  9  Vroom,  N.  J.  L.  11.  140.     1875. 

§  7.  Where  it  is  understood  by  the  parties  that  an 
insurance,  although  in  the  name  of  one,  is  effected  in  be- 
half of  another  and  to  protect  his  interest,  the  former  is 
"trustee  of  an  express  trust"  under  Sect.  113  (now  449) 
of  the  Code,  as  being  one  "  with  whom  a  contract  is  made 
for  the  benefit  of  another,"  and  action  may  be  brought  by 
him.    Pitney  v.  Glen's  Falls  Ins.  Co.  65  N.  Y.  6.     1875. 

§  8.  Where  loss  is  made  payable  to  mortgagee,  the 
owner  and  assured  is  not  a  necessary  party  to  an  action. 
Roussel  V.  St.  Nicholas  Ins.  Co.  9  Jones  <fe  Sp.  280.    1876. 

§  9.  The  owner  of  property  consigned  to  factor  who 
insured  it  in  his  own  name,  cannot  maintain  an  action 
under  the  policy  for  recovery  of  the  insurance.  Gordon 
y.  Wright,  29  La.  Ann.  812.     1877. 

§  10.  Policy  for  $2,500  was  payable  to  third  parties 
to  extent  of  $1,400,  as  their  interest  might  appear.  Ac- 
tion was  brought  by  assured,  and  a  verdict  was  obtained 
for  $1,530.  Held,  that  plaintiff  was  entitled  to  at  least 
$130  of  the  verdict,  which  was  allowed  to  stand  upon 
condition  that  releases  should  be  obtained  from  the  parties 
to  whom  loss  was  payable.  Deav  v.  Western  Ins.  Co.  41 
Up.  Can.  Q.  B.  553.     1877. 

§  11.    When  the  party  insured  retains  by  the  terms 
of  the  policy  itself,  interest  beyond  the  control  of  the 
mortgagee  to  whom  loss  is  made  payable,  the  latter  cannot 
\m..  ir.— 25 


^l\ 


m 


■■'i 


In' 


il 


■■IS  I 

'! 


■!.  \ 


Pi 


.1 


ISi    ; 


':  !     1 
i     1 


iiii 


V 


i 


;i! 


u 


am 


WHO   MAY  SUE. 


maintain  an  action  in  his  own  name.     Hartford  Fire  Ins. 
Co.  V.  Davenport,  37  Micli.  009.     18Y7. 

§  12.  Party  to  whom  loss  is  made  payable  may  sue 
for  and  recover  the  whole  amount  due  under  policy,  hold- 
ing residue  over  and  above  his  own  interest,  as  trustee  for 
benefit  of  owner  or  others  interested.  Dakin  v.  Liverpool, 
London,  and  Globe  Ins.  Co.  77  N.  Y.  600.  1879.  Affi'g 
13  Hun,  122.     See  §§  4,  14. 

§  13.  The  assured  and  party  to  whom  loss  is  made 
payable  are  propeily  joined  as  plaintiffs.  Lasher  v.  North- 
western Nat.  Ins.  Co.  18  Hun,  98.     1879. 

§  14.  Party  to  whom  loss  is  payable  may  maintain 
action  in  his  own  name.  Westchester  Fire  Ins.  Co.  v. 
Foster,  90  111.  121.  1878.  Bank  of  Hamilton  v.  Western 
Ins.  Co.  38  Up.  Can.  Q.  B.  609.  1876.  St.  Paul  F.  &  M. 
Ins.  Co.  V.  Johnson,  77  111.  598.  1875.  Pitney  v.  Glen's 
Falls  Ins.  Co.  65  N.  Y.  6.  1875.  Turner  v.  Quincy  Ins. 
Co.  109  Mass.  568.  1872.  Contra,  Maritime  Bank  v. 
Guardian  Ins.  Co.  3  Pugsley  &  B.  297.  1879.  See  §§  4, 
12. 

§  15.  When  policy  on  building  is  made  payable  to 
mortgagee,  and  the  assured  being  dead,  action  is  brought 
by  his  administrator  to  use  of  the  former,  there  is  no  foice 
in  the  objection  that  the  administrator  cannot  maintain 
action  the  title  having  descended  to  heirs  of  the  assured. 
Westchester  P'ire  Ins.  Co.  v.  Dodge,  9  Ins.  L.  J.  909.  1880. 
Mich. 

§  16.  When  there  is  a  question  as  to  whether  insur- 
ance money,  the  insured  having  died,  should  go  to  the  ad- 
ministrator or  to  the  heir,  both  may  sustain  a  suit  in  eq- 
uity to  enforce  the  claim  against  the  company.  Ports- 
mouth Ins.  Co.  V.  Ileynolds,  32  Grat.  613.     1880. 

§  17.  Although  insurance  is  obtained  by  a  mort- 
gagee upon  his  interest  as  such,  if  there  is  an  agreement 
that  such  insurance  shall  be  applied  for  the  benefit  of  the 
owner  and  mortgagor  and  credited  upon  the  mortgage, 
the  mortgagor  is  the  real  party  in  interest,  and  the  action 


J 


d  Fire  Ins. 


\e  raay  sue 
olicv,  hold- 
I  trustee  for 
.  Liverpool, 
179.     Affi'g 


ss  is  nicade 
er  V.  North- 


y  maintain 
Ins.  Co.  V. 
V.  Westei'u 
iul  F.  &  M. 
y  V.  Glen's 
^uincy  Ins. 
ae  Bank  v. 
See  §§  4, 

payable  to 
is  brought 
I  is  no  force 
t  maintain 
he  assuied. 
909.   1880. 


WHO  MAY  SUE. 


387 


ether  insur- 
)  to  the  ad- 
suit  in  eq- 
ny.     Ports- 

80. 

•y  a  raort- 
agreement 

nefit  of  the 
mortgage, 
the  action 


should  be  brought  in  liis  name.     vEtna  Ins.  Co.  v.  Baker 
71  Ind.  102.     1880. 

§  18.  It  appeared  upon  face  of  the  complaint,  in  an 
action  brought  by  the  mortgagee  to  whom  the  loss  w\as 
made  payable,  that  the  mortgajre  debt  was  greater  than 
the  sum  insured,  which  complaint  being  demurred  to  on 
the  ground  that  mortgagor  and  assured  should  have  been 
made  a  ])arty,  Held,  that  the  mortgagor  was  not  a  neces- 
sary party,  the  demurrer  admitting  he  had  no  interest 
Hammel  v.  Queen  Ins.  Co.  9  Ins.  L,  J.  905.  1880. 
Wis. 

§  19.  The  assured  W.  II.  Greene  and  Co.  were  in- 
del)ted  to  E.  A.  Greene,  and  there  was  an  understanding 
between  them  that  the  latter  should  have  the  benefit  of 
policy  in  question.  After  loss  latter  wrote  for  the  policy, 
and  it  was  sent  to  him  as  his  property  in  pursuance  of 
such  understanding  to  collect  and  apply  the  proceeds  upon 
the  indebtedness.  At* same  time  assured  sent  to  E.  A. 
Greene  an  order  upon  the  company  to  pay  the  amount  of 
the  insurance  to  the  latter.  Suit  was  finally  brought  in 
Mississippi  in  name  of  the  assured  to  use  of  E.  A.  Greene, 
and  judgment  was  obtained  against  the  company.  Action 
was  brought  in  New  York  u|)on  the  judgment  in  name  of 
E.  A.  Greene  as  plaintiff'.  Held,  that  thei'e  was  an  assign- 
ment of  policy  to  plaintiff,  and  being  the  ow^er  of  the 
judgment  and  real  party  in  interest  he  could  mamtain  ac- 
tion in  his  own  name  under  provisions  of  New  York  Code. 
Greene  v.  Republiclns.  Co.  84  N.  Y.  572.     1881. 

§  20.  When  fire  is  caused  by  wrongful  or  negligent 
act  of  a  tjiii'd  party,  the  cause  of  action  is  indivisible.  At 
common  law  action  must  be  brought  in  name  of  the  as- 
sured, and  when  rules  of  common  law  have  been  modified 
by  Code  or  Statute,  action  may  be  brought  in  names  of 
the  companies  and  the  assured  jointly.  First  Presbyterian 
Society  et  al.  v.  Goodrich  Tiansportation  Company,  10 
Ins.  L.  J.  452.  1881.  U.  S.  Circuit,  Wis.  s.  p.  S warthout 
V.  Chicacro  and  N.  W.  R.  R.  Co.  49  Wis.  625.     1880. 


8oc  Alienation,  §7,  23.     Mortgagor  nnd  Mortgagee.  0,  13,  18,  25. 
tual  Company,  7.      Instirnblc   Interest,  12.      Interest  in   Policy,  5,  9, 
Proofs  of  Loss,  36.     Subrogation,  3,  11. 


Mu- 
13. 


If 


m 


■  ■  Ti 


t^t' 


\    -It 


Mi 


& 


SUPPLEMENT 

CONTAINING  THE  LATEST  REPORTED  CASES  TO  1882. 


AGENT. 


§  1.  Although  a  policy  may  be  deemed  to  be  without 
conditions,  conditions  indorsed  not  being  in  accordance 
with  the  statute,  still  the  conditions  may  be  considered  in 
reference  to  company's  intention  as  to  authority  of  its 
agent.  Parsons  v.  Queens  Ins.  Co.  29  Up.  Can.  C.  P.  188. 
1878. 

Bee  Warranty  and  Representation,  §  7. 

ALIENATION. 

§  1.  A  condition  against  "  change  of  interest "  is  vio- 
lated by  execution  and  delivery  of  a  mortgage.  O'Neill 
V.  Ottawa  Agricultural  Ins.  Co.  30  Up.  Can.  C.  P.  151. 
1879. 

§  2.  Policy  provided  that  "  if  property  be  sold  or 
transferred,  or  any  change  takes  place  in  the  title  or  pos- 
session, whether  by  legal  process  or  judicial  decree,  or 
voluntary  transfer  or  conveyance,  it  should  be  void." 
Assured  made  a  transfer  by  a  sale  under  a  deed  of  trust. 
Held^  such  a  change  in  the  title  as  to  render  policy  void. 
Commercial  Union  Ins.  Co.  v.  Scammon,  12  Rep.  745. 
1881.     111. 

§  3.  Sheriffs  deed  on  foreclosure  of  mortgage  is  such 
an  alienation  as  avoids  the  insurance  under  a  condition 
which  provides  that  "  if  the  prop.^rty  be  sold  or  trans- 
ferred, or  any  change  takes  place  in  title  or  possession, 
whether  by  legal  process  or  judicial  decree,  or  voluntary 
transfer  or  conveyance,"  policy  shall  be  void.  Hagaman 
V.  Allemania  Ins.  Co.  10  Ins.  L.  J.  838.     1881.    Pa. 

See  Enoumbrance,  §  3,  3.    Mutual  Compauy,  1. 


.Hi 


-v- 


^\ 


390  supplement. 

Alteration. 

See  Increase  of  Risk,  §  3. 

APPLICATION. 

§  1.  Covenants  in  application  are  no  part  of  the  in- 
surance contract  unless  made  part  of  policy  by  reference 
or  incorporation.  Bergan  v.  Manufacturers  and  Mer- 
chants' Ins.  Co.  29  Up.  Can.  C.  P.  414.     1878. 

Sec  Encumbrance,  §  1.    Title,  3. 

Arbitration  and  Appraisement. 

See  Waiver,  §  4. 

Assignment. 

See  Waiver,  §  2. 


CANCELLATION. 


S  1. 


§  1.  To  sustain  defense  of  cancellation  company  must 
show  that  assured  had  notice  of  the  cancellation,  and  that 
the  return  premium  was  actually  paid  or  tendered  to  him. 
Eunkle  v.  Citizens'  Ins.  Co.  6  Fed.  Rep.  143.  1881. 
U.  S.  Circuit,  Pa. 

§  2.  The  power  to  cancel  a  policy  cannot  be  dele- 
gated by  an  agent  to  another  person ;  such  person  may 
however  deliver  the  notice  and  pay  or  tender  the  return 
premium,  llunkle  v.  Citizens'  Ins.  Co.  6  Fed.  Rep.  143. 
1881.     U.  S.  Circuit,  Pa. 


CERTIFICATE. 

§  1.  Policy  provided  that  "  assured  shall  also  procure 
a  certificate,  under  the  hand  and  seal  of  a  magistrate  or 
notary  pul)lic  (nearest  the  place  of  fire,  not  concerned  in 
the  loss  *  *  *)  ;  that  he  has  examined  circumstances 
attending  the  loss  *  *  *  an^l  verily  believes  that  as- 
sured has,  without  fraud,  sustained  loss  to  amount  which 
such  magistrate  or  notary  shall  certify.  And  until  such 
certificate  is  furnished  loss  shall  not  be  payable."     Notary 


SUPPLEMENT. 


391 


)f  the  in- 
reference 
,nd   Mer- 


my  must 
and  that 
I  to  him. 
;.     1881. 

be  dele- 
son  may 
B  return 
iep.  143. 


procure 
itrate  or 
jrued  in 
nstauccs 

that  as- 
t  which 
til  such 

Notary 


who  gave  certificate  in  question  had  his  office  25  rods 
from  fire ;  his  residence  further.  At  same  time  Lloyd,  a 
magistrate,  had  a  place  of  business  8  rods  from  fire. 
Allen,  another  magistrate,  12  rods,  and  Pitkin,  another,  15 
rods.  Held^  that  above  clause  was  a  condition  precedent 
and  that  it  was  not  performed,  as  certifying  notary  was 
not  the  nearest^  and  company  having  plainly  made  and 
stated  its  objection  to  the  certificate  m  due  time,  and  as- 
sured having  failed  to  furnish  another  certificate,  he  was 
not  entitled  to  recover.  Gilligan  v.  Commercial  Ins  Co 
20  Hun,  93.  1880.  Affi'd  by  N.  Y.  Ct.  App.  (without 
opinion)  24  Alb.  L.  J.  480. 


See  Waiver,  §  3. 


CONCEALMENT. 


§  1.  An  omission  to  designate  on  a  diagram  build- 
ings situated  in  immediate  vicinity  of  property  upon 
which  the  application  for  insurance  is  made  is  an  "  omis- 
sion to  make  known  facts  material  to  the  risk  "  within 
meaning  of  these  terms  as  used  in  policy.  Gilligan  v. 
Commercial  Ins.  Co.  20  Hun,  93.  1880.  Affi'd  by  N.  Y.  , 
Ct.  App.  (without  opinion)  24  Alb.  L.  J.  480. 

Sec  Warranty  and  Representation,  §  7. 

CONSTRUCTION. 

§  1.  Contracts  of  insurance  are  to  be  construed  as 
other  contracts.  All  parts  of  the  contract  are  to  be  taken 
together ;  and  they  shall  bo  liberally  construed  ;  and  such 
meaning  shall  be  given  to  them  as  will  carry  out  and 
eff\3ctuate  to  the  fullest  extent  the  intention  of  the  parties, 
and  no  portion  of  it  shall  receive  such  a  construction  as 
will  tend  to  defeat  the  obvious  general  purpose  of  the 
parties  entering  into  the  contract.  Crane  v.  City  Ins.  Co, 
3  Fed.  Rep.  558.  1880.  U.  S.  Circuit,  Ohio.  s.  p.  Bar- 
ber V.  F.  &.  M.  Ins.  Co.  10  W.  Va.  058.     1880. 

§  2.  Parties  having  expiessly  agreed  upon  terms  of 
the  contract,  I  am  unable  to  see  anything  reprehensible 
in  law  or  morals  where  a  party  insists  upon  all  lawful 
conditions  imposed  by  a  contract  to  which  both  gave  their 


'  'iii 


fm 


1 


i 


f 


! 


I 


.1! 


!i 


392 


SUPPLEMENT. 


free  assent.  Parties  make  contracts  for  themselves,  and,  in 
the  absence  of  fraud  or  mistake,  it  is  right  that  due  ob- 
servance should  be  required  of  their  lawful  provisions. 
It  does  not  lie  with  the  court  to  relieve  either  because  of 
an  apparent  hardship  in  the  enforcement  of  terais  and 
conditions,  deliberately  considered  and  expressly  agreed 
upon.  Per  Bockes,  J.  Gilligan  v.  Commercial  Ins.  Co. 
20  Hun,  93.  1880.  Affi'd  by  N.  Y.  Ct.  App.  (without 
opinion)  24  Alb.  L.  J.  480. 

§  3.  When  an  insurance  company  prints  conditions 
of  the  insurance  in  very  sjuall  type  it  leads  to  the  infer- 
ence that  they  do  not  mean  them  to  be  read.  They  may 
expect  to  encounter  in  such  cases  diflSculty  with  courts 
and  juries  when  they  set  up  as  a  defense  a  breach  of  such 
conditions.  Company  relieves  itself  of  such  imputation 
and  difficulty  by  printing  at  top  of  the  indorsement  on 
policy  in  large  type,  "  Road  the  conditions  of  tliis  policy." 
Hagaman  v.  Allemania  Ins.  Co.  10  Ins.  L.  J.  838.  1881. 
Pa. 

CONTPvIBUTION. 

§  1.  Assured  was  in  possession  under  contract  of 
purchase.  Defendant  ottered  to  prove  that  vendor  had 
insured  same  property  in  another  company,  and  had  re- 
ceived a  certain  sum  upon  loss  in  suit  and  had  credited  it 
to  plaintiff  upon  purchase  price  of  property.  Trial  court 
excluded  the  evidence.  Policy  contained  usual  condition 
providing  for  an  apportionment  of  the  loss  in  case  of  other 
insurance.  Held,  error ;  that  inference  was  that  other  in- 
surance was  effected  for  plaintiffs  benefit,  as  well  as  to 
secure  vendor  for  balance  of  purchase-money.  Hence,  if 
true,  case  was  brought  within  operation  of  the  condition, 
and  evidence  should  have  been  received.  Bredow  v.  Erie 
Co.  Mut.  Ins.  Co.  13  N.  Y.  Weekly  Dig.  211.  1881. 
N.  Y.  Sup. 

Distance  Betwken  Buildings. 

Sec  Warranty  and  Representation,  §  1,  5,  8. 


SUPPLEMENT. 


393 


3S,  and,  in 
t  clue  ob- 
roviaions. 
ecause  of 
erais  and 
y  agreed 
Ins.  Co. 
(without 

onditions 
the  infer- 
^hey  may 
th  courts 
h  of  such 
iputation 
lament  on 
s  policy." 
i.     1881. 


mtract  of 
ndor  had 
I  had  re- 
redited  it 
rial  court 
condition 
e  of  other 
other  in- 
veil  as  to 
Hence,  if 
sondition^ 
w  V.  Erie 
1.     1881. 


ENCUMBRANCE. 

§.  1.  Application  contained  following :  "  Incumbrances. 
Is  the  property  mortgaged?  If  so,  state  the  amount. 
la  there  any  insurance  by  tbe  mortgagee?  Ans.  Yes, 
$500  mortgage.  Loss  payable  to  Mr.  G.  as  interest  may 
appear."  But  there  was  no  mention  of  another  mortgage 
for  $1,000.  This  application  was  one  of  three  made  at 
same  time,  and  although  for  insurance  on  different  build- 
ings they  were  all  on  same  piece  of  land  of  about  4  acres. 
In  one  of  the  other  applications  assui'ed  in  answer  to  simi- 
lar question  stated  the  correct  amount  of  the  moi  tgage 
incumbrance  to  be  $1,500.  Jfeld,  no  misre[)iesentation  as 
to  incumbrances,  and  that  company  had  notice  of  the  facts 
by  the  other  application.  McGugan  v.  Manufacturers'  & 
Merchants'  Int.  Co.  29  Up.  Can.  C.  P.  494.     1879. 

§  2.  Consent  to  transfer  and  assignment  with  knowl- 
edge of  a  sale  cannot  be  extended  to  include  consent  to 
the  creation  of  an  incumbrance  by  mortgage.  German 
Am.  Bank  v.  Agricultural  Ins.  Co.  8  Mo.  App.401.    1880. 

§  3.  An  illegal  assessment  and  seizure  of  insured 
property  under  U.  S.  Revenue  Laws,  does  not  create  a 
lien  under  terms  of  a  policy  of  insurance,  nor  is  it  a 
change  of  possession  by  legal  process.  The  phrase  legal 
process  means  valid  legal  process.  Runkle  v.  Citizens' 
Ins.  Co.  6  Fed.  Rep.  143.     1881.    U.  S.  Circuit,  Pa. 

ESTOPPEL. 

§  1.  If  policy  is  issued  with  knowledge  and  verbal 
assent  of  company's  agent  to  a  transfer  of  insured  ptop- 
erty  in  trust  for  creditors,  it  operates  as  an  estoppel.  Mc- 
Queen V.  I'hoenix  Mut.  Ins.  Co.  4  Can.  Sup.  G60.    1880. 

§  2.  Company  is  not  affected  by  knowledge  of  its 
agent  acquired  after  issue  and  delivery  of  the  policy. 
Crane  v.  City  Ins.  Co.  3  Fed.  Rep.  558.  1880.  U.S.  Cir- 
cuit, Ohio. 

See  Reformation,  §  2.    Title,  2, 


i,, 


■■•! 


FTT 


II 


394 


SUPPLEMENT. 


EVIDENCE. 


1     ! 


§  1.  Issue  being  on  question  of  increase  of  risk  and 
notice  to  company  through  its  agent  as  waiver  of  written 
consent,  witness  was  asked,  "  What  is  your  best  recollec- 
tion as  to  what  took  place  in  regard  to  notice  ?  Ans.  My 
impression  is  that  I  stated  the  facts  to  the  agent."  Held, 
that  testimony  was  not  such  as  to  warrant  a  jury  to  set 
aside  condition  of  contract  requiring  written  consent. 
Pottsville  Mut.  Ins.  Co.  v.  Horan,  10  Ins.  K  J.  771.  1881. 
Pa. 

See  Agent,  §  1.     Contribution,  1. 

Execution. 

See  Encumbrance,  §  3. 

FOREIGN  COMPANY. 

§•1.  The  Act  of  the  Legislature  of  Ontario  (R.  S.  0. 
ch.  1(52),  prescribing  conditions  of  insurance,  is  not  a  "reg- 
ulation of  trade  and  commerce  "  as  these  terms  are  used 
in  the  British  North  America  Act.  Citizens'  Ins.  Co.  v. 
Parsons,  4  Can.  Sup.  215.     1879. 

§  2.  A  company  which  has  insured  property  in  On- 
tario and  has  not  complied  with  R.  S.  O.  ch.  162,  by 
printing  statutory  conditions  in  the  policy,  cannot  avail 
itself  of  either  its  own  or  the  statutory  conditions.  In 
such  a  case  the  assured  only  may  have  benefit  of  the 
statute.  Citizens'  Ins.  Co.  v.  Parsons,  4  Can.  Sup.  215. 
1871). 

§  S.  Section  1,  ch.  90,  of  the  General  Statutes  of 
Missouri,  which  gives  damages  in  actions  against  insur- 
ance companies  for  a  vexatious  refusal  to  pay  policies, 
was  not  repealed  by  Act  of  March  10,  1869,  for  the  incor- 
poration and  regulation  of  insurance  companies.  Relfe  v, 
Wilson,  1  Morrison  Tr.  264.     1880.     U.  S.  Sup. 

§  4.  While  failure  by  foreign  company  to  comply 
with  statute  governing  its  authority  to  transact  business 
in  the  State  subjects  its  agents  and  brokers  to  penalties 
prescribed,  such    failure   does    !'.ot  affect  the  validity  of 


SUPPLEMENT. 


395 


)f  risk  and 
of  written 
st  recollec- 
Ans.  My 
It."  JleM.^ 
jury  to  set 
n  consent. 
71.     1881. 


0  (R.  S.  0. 
lot  a"reg- 
i  are  used 
ins.  Co.  V. 

'ty  in  On- 
I.  162,  by 
nnot  avail 
tions.  In 
)fit  of  the 
Sup.  215. 

tatutes  of 
nst  insur- 
Y  policies, 
the  incor- 
Reli'e  v. 


}  comply 
<  business 
penalties 
alidity  of 


tlie  policies  issued,  or  in  any  manner  operate  to  prejudice 
of  policy  holders.  Erhman  v.  Teutonia  Ins.  Co.  1  Fed 
Rep.  471.     1880. 

FRAUD  AND  FALSE  SWEARING. 

§  1.  To  sustain  defense  of  fi'aud  in  swearing  to  proofs 
and  amount  of  claim  it  must  be  established  not  only  that 
property  was  worth  less  but  that  assured  made  a  fraudu- 
lent valuation.  Putnam  v.  Commonwealth  Ins.  Co  18 
Blatch.  368.     1880. 

§  2.  Under  condition  that  "all  fraud  or  attempt  at 
fraud,  by  false  swearing  or  otherwise,  shall  render  policy 
void,"  a  mere  willfully  false  statement  is  not  itself  sufficient 
to  effect  a  forfeiture  without  proof  that  company  was  in 
some  way  prejudiced  thereby.  Shaw  v.  Scottish  Com- 
mercial Ins.  Co.  1  Fed.  Rep.  761.     1880. 

INCREASE  OF  RISK. 

§  1.  The  words  "  increase  the  risk "  should  be  con- 
strued as  meaning  an  essential  and  material  increase  of  the 
risk.  Crane  v.  City  Ins.  Co.  3  Fed.  Rep.  558.  1880.  U. 
S.  Circuit,  Ohio. 

§  2.  Policy  contained  clause  as  follows:  "The  insured 
has  permission  to  make  alterations  and  repairs  incidental 
to  the  business."  Defense  was  an  increase  of  the  risk. 
Ifekl,  that  above  clause  could  not  be  extended  to  embrace 
all  alterations  which  parties  might  desire  to  make  con- 
nected with  carrying  on  of  the  business,  although  it  might 
increase,  to  an  unlimited  extent,  liability  of  joremises  to  be 
destroyed  by  fire.  Clause  must  be  understood  as  embrac- 
ing such  alterations  in  relation  to  the  carrying  on  the  busi- 
ness of  the  plaintiffs  as  would  not  essentially  and  materi- 
ally increase  the  liability  of  the  property  to  be  destroyed 
by  fire.  Crane  v.  City  Ins.  Co.  3  Fed.  Rep.  558.  1880. 
U.  S.  Circuit,  Ohio. 

§  3.  Condition  provided  that  "  any  change  material  to 
the  risk,  and  within  knowledge  or  control  of  assured, 
should  void  policy  unless  change  notified  to  company  in 


V 


:. 


1! 


Sr  i 


I 


390 


SUPPLEMENT. 


writing,  <fec.,  in  which  case  company  might  cancel.  Prem- 
ises were  insured  as  "occupied  as  a  grocery  store  and 
dwelling,"  and  were  re-let  ito  one  who  used  them  for  deal- 
ing  in  furniture,  and  had  a  small  room  rear  of  shop  in 
which  he  had  a  carpentei's  bench  and  tools  and  did  repair- 
ing and  rough  work.  The  local  agent  of  company  was 
notified  of  change,  and  went  on  premises  and  saw  work 
being  done  in  shoj).  He  tlien  wrote  to  home  office  of 
company,  advising  them  of  the  facts.  They  replied  tbat 
if  policy  was  sent  with  explanation,  they  would  consent 
in  writing,  adding  *'  Is  there  woodwork  done  on  tlie  prem- 
ises ?"  Matter  was  then  allowed  to  drop.  The  questions 
of  materiality  and  notice  having  been  submitted  to  the 
jury,  Held^  that  their  verdict  in  favor  of  plaintiff  was  con- 
clusive. Peck  V.  Phcenix  Mut.  Ins.  Co.  45  Up.  Can.  Q.  B. 
620.    1881. 

§  4.  Policy  provided,  that  "  if  after  insurance  the  risk 
shall  be  increased  by  any  means  whatsoever,  or  if  the 
property  be  used  or  occupied  so  as  to  renuer  the  risk  more 
hazardous  than  at  time  ot'  insuring,  and  the  assured  shall 
notify  the  company  of  said  increased  risk,  and  obtain  writ- 
ten consent,  *  *  *  "  it  shall  be  void.  At  time  risk 
was  taken  there  was  a  vacancy  of  twenty-six  feet  on  one 
side  of  insured  property.  Subsequently  assured  erected 
a  new  house  on  this  vacant  lot,  thus  filling  up  opening 
and  forming  one  continuous  row  of  frame  houses.  The 
fire  was  communicated  from  the  new  building.  Ileld^  that 
the  fact  of  increase  of  risk  was  so  self-evident  as  to  require 
no  proof,  and  that  plaintiff  wis  not  entitled  to  recover. 
Pottsville  Ins.  Co.  v,  Horan,  10  Ins.  L.  J.  771.  ISSl. 
Pa. 

See  Waiver,  §  5. 

INSURABLE   INTEREST. 

8  1.  Party  who  has  transferred  to  a  Bank  warehouse 
receipts  as  collateral  security,  retains  an  insurable  interest 
in  the  property.  Parsons  v.  Queen  Ins.  Co.  29  Up.  Can. 
C.  P.  188.     1878. 


SUPPLEMENT. 


397 


el.  Prem- 
store  and 
m  for  (leal, 
of  shop  in 
(lid  repair- 
iil)any  was 
saw  Work 
le  office  of 
eplied  that 
lid  consent 
I  the  preni- 
B  qu(^stion8 
ted  to  the 
ff  was  con- 
Can.  Q.  B. 

ice  the  risk 
or  if  the 
risk  more 
sured  shall 
btain  writ- 
;  time  risk 
eet  on  one 
•ed  erected 
ip  opening 
uses.  The 
Held,  that 
to  require 
to  recover. 
4.     18SI. 


tvar(3liouse 

le  interest 

Up.  Can. 


§  2.  A.  bavins  made  advances  to  B.  upon  a  vessel  in 
course  of  construction,  upon  faith  of  a  verbal  ar^reement 
that  when  finished  vessel  should  bo  put  in  former's  hands 
for  sale  and  that  he  should  be  repaid  out  of  proceeds, 
and  fire  occurring  before  work  was  completed,  Held,  that 
A.  had  an  equitable  interest  and  that  it  was  insurable. 
Clark  V.  Scottish  Imp.  Ins.  Co.  4  Can.  Sup.  192.  1879. 
Kev'g  2  Pugs,  and  B.  240. 

See  Pleading  and  Practice,  §  5. 

Interest  in  Policy. 

See  Mortgagor  and  Mortgagee,  §  3. 

LlGHTINCr. 
See  Storing  and  Keeping,  §  3. 

LIMITATION  CLAUSE. 

§  1.  The  time  prescribed  in  a  policy  of  insurance  dur- 
ing which  suit  must  be  brought,  does  not  commence  to  run 
until  right  of  action  accrues  on  the  policy.  Barber  v.  F. 
and  M.lns.  Co.  16  W.  Va  658.     1880. 

See  Proofs  of  Loss,  §  1. 

MORTGAGOR  AND  MORTGAGEE. 

§  1.  Semble,  When  policy  is  issued  to  a  mortgagor, 
with  loss  payable  to  the  mortgagee,  if  the  injured  prop- 
erty is  repaired  by  the  mortgagor  there  is  no  right  of  ac- 
tion on  the  policy.  Friemansdorf  v.  Watertown  Ins.  Co. 
1  Fed.  Rep.  68.     1879. 

§  2.  Policy  issued  by  misrepresentation  as  to  the 
ownership  of  the  property  cannot  fairly  be  considered  as 
embraced  within  the  meaning  of  a  special  mortgage  clause 
which  provides  that  interest  of  mortgagee  shall  not  be  in- 
validated by  any  act  or  neglect  of  the  mortgagor  or  owner 
of  the  property.  Such  a  clause  contemplates  a  case  where 
the  owner  could  act  or  could  neglect,  and  not  a  case  where 
policy  is  issued  in  name  of  an  inftmt,  or  of  one  who  by 
reason  of  incapacity  could  not  furnish  any  protection  to 


!  h 


.pl! 


i«*a 


S,! ; 


, 


Mil 


i! 


398 


SUPPLKMENT. 


the  company.     Graham  v.  Fireinen'a  Ins.  Co.   1'6  N.  Y. 
Weekly  Dig.  338.     1881.     N.  Y.  Ct  App. 

§  3.  When  policy  \^  issued  in  name  of  owner  and 
loss  made  payable  to  mortpjagee,  with  special  agreement 
with  latter  to  eU'ect  that  any  breach  of  conditions  of  in- 
surance l)y  owner  will  not  atfeet  the  mortgagee;  and  that 
in  such  case  if  com])any  claims  there  was  such  a  breach  it 
shall  be  subrogated  to  rights  of  tlie  mortgagee  (known  as 
the  mortgagee  clause^,  it  is  not  an  insurance  of  the  mort- 
gagee interest.  It  is  an  insurance  of  the  owner'^s  interest 
and  the  policy  enures  to  his  benefit  at  tb^i  outset  and  so 
continues,  unless  some  condition  in  it  is  '  en.  Doran  v. 
Franklin  Fire  Ins.  Co.  10  Ins.  L.  J.  842.         ^1.     N.  Y. 

8ee  Who  May  Sue,  §1,2. 

MUTUAL  COMPANY. 

§  1.  Sect.  41,  R.  S.  O.  ch.  161,  provides,  that  "in  case 
any  property  is  alienated  by  sale,  po'icy  shall  be  void  and 
shall  be  surrendered  to  company  to  be  cancelled,  and 
thereupon  assured  shall  be  entitled  to  receive  his  deposit 
note  upon  payment  of  his  proportion  of  accrued  losses." 
Ileldf  that  an  alienation  avoided  the  policy  wholly  and 
operated  not  only  to  relieve  company  from  any  liability 
on  contract  of  insurance,  but  also  enabled  assured  to  re- 
lieve himself  from  liability  to  further  assessment.  Niagara 
Dist.  Mut.  Ins.  Co.  v.  Godon,  29  Up.  Can.  C.  P.  Oil. 
1879. 

§  2.  In  suit  for  an  assessment  upon  pi'emium  note  the 
fact  that  the  assessments  largely  exceeded  liabilities  of 
company  will  not  defeat  recovery  where  it  appears  that 
amount  company  was  actually  able  to  collect  was  a  sum 
iess  than  the  liabilities.  Buckley  v.  Columbia  Ins.  Co.  02 
Pa.  501.     1880. 

§  3.  A  promissory  note  having  been  given  and  ac- 
cepted for  an  assessment  upon  a  premium  note,  and  former 
not  being  paid  at  maturity,  JJeld,  that  by  36  Vict.  ch.  44, 
O.,  the  note  could  be  deemed  only  as  suspending  debt 
c'nring  the  time  it  had  to  run,  and  that  therefore  its  non- 


SUPPLEMENT. 


399 


.   13  N.  Y. 

owner  and 

agreement 
;ion3  of  in- 

and  that 
a  breach  it 
(known  as 
"  the  moi't- 
'■i'''s  interest 
;8et  and  so 

Doran  v. 

N.  Y. 


at  " in  case 
e  void  and 
elled,  and 
iis  deposit 
t)d  losses." 
i^hoUy  and 
Y  ^'ability 
ired  to  re- 
Niagara 
I  P.  Oil. 


payment  at  maturity  avoided  the  insurance.  McGu^an  v. 
Manufacturers'  and  Merchants'  Ins.  Co.  29  Up.  Can.°0.  P. 
494.  1879.  But  see  Balhigh  v.  lloyal  Mat.  Fire  liis  Co 
6  Tupper,  87.     1880. 

§  4.  In  levying  an  assessment  directors  need  not 
make  a  separate  assessment  on  each  member  by  name,  or 
levy  an  ascertained  sum  on  each  member;  a  general  assess- 
ment on  all  the  members  for  a  given  percentage  upon 
their  notes  is  sufficient.  Lycoming  Fire  Ins.  Co.  v.  llouo-ht 
12  Rep.  6G6.     1881.     Pa.     s.  c.  10  Ins.  L.  J.  78G.       °    ' 

§  5.  Assured  holding  policy  of  mutual  company  noti- 
fied agent  that  he  had  obtained  other  insurance,  and  latter 
stated  that  insurance  was  all  right.  Subsequently  a  divi- 
dend was  paid  to  assured.  Held^  that  company  was  bound 
by  notice  to  and  knowledge  of  agent,  and  payment  of  the 
dividend  operated  as  a  waiver.  Combs  v.  Shrewsbury 
Ins.  Co.  7  Stewart  (N.  J.  Eq.),  403.     1881. 

NOTICE  OF  LOSS. 

§  1.  When  policy  does  not  require  notice  of  loss  to  be 
in  writing,  or  the  information  conveyed  in  any  special  or 
formal  manner,  a  notice  given  by  a  messenger  verbally  to 
the  insuring  agent  and  by  him  communicated  to  the  com- 
pany is  both  in  time  and  form  sufficient.  Argall  v.  Ins. 
Co.  84  N.  C.  355.     1881. 


:.  A 


4 
■■■% 


'n 


-..'■' 


I 


Q  note  the 
bilities  of 
lears  that 
'^as  a  sum 
ins.  Co.  92 

Q  and  ac- 
nd  former 
ct.  ch.  44, 
ling  debt 
•e  its  non- 


OTIIER  INSURANCE. 

§  1.  A  consent  to  existing  other  insurance  does  not 
prevent  assured  from  changing  companies  so  long  as  he 
doe  •  rot  increase  the  total  amount.  Parsons  v.  Victoria 
Mut.  Ins.  Co.  29  Up.  Can.  C.  P.  22.     1878. 

§  2.  Policy  in  suit  was  upon  a  stock  of  wool,  pur- 
chased during  the  wool  season,  and  kept  in  a  certain  store- 
house separate  from  assured's  general  stock.  A  prior  pol- 
icy of  another  company  was  on  general  stock  of  goods, 
including  some  wool  pickings,  but  a  small  quantity  pur- 
chased out  of  the  season.    Held^  latter  policy  not  to  be 


\ 


1*  f 

0   ■ 


7T  - 


I 


f  1 


1 


f:    J 


'if 


400 


SUPPLEMENT. 


other  insuraDce.    Parsons  v.  Queen  Ins.  Co.  29  Up.  Can. 
C.  P.  188.     1878. 

§  3.  Issue  by  agent  of  company  of  a  policy  with 
knowledge  of  existence  of  other  insurance,  operates  as  a 
waiver  of  contiition  requiring  written  consent.  Putnam 
V.  Commonwealth  Ins.  Co.  18  Blatch.  368.     1880. 

§  4.  Trial  court  overruled  defense  based  on  existence 
of  prior  insurance,  on  the  ground  that  the  prior  policy 
had  become  void  in  consequence  of  vacancy  and  increase 
of  risk,  and  consequently  that  there  was  no  prior  insur- 
ance  when  defendant's  policy  was  issued.  lleld,  error ; 
that  prior  policy  was  valid  when  issued,  but  was  avoid- 
able by  company  issuing  it  for  breach  of  condition  subse- 
quent. The  first  policy  was  voidable  only  at  election  of 
the  company.  Violation  of  the  conditions  did  not,  ipso 
facto,  extinguish  the  policy.  Landers  v.  Watertown  Fire 
Ins.  Co.  10  Ins.  L.  J.  8G2.     1881.     N.  Y. 

§  .5.  Defendant's  policy  contained  condition  provid- 
ing that  if  assured  should  have  or  procure  other  insurance 
it  should  be  void.  And  also  another  condition  providing 
for  an  apportionment  of  the  loss  in  event  of  existence  of 
other  insurance.  Policy,  claimed  to  be  other  insurance, 
was  obtained  by  a  mortgagee  (to  whom  the  loss  was  made 
payable),  without  the  knowledge  of  the  plaintiff.  The 
mortgage  contained  clause  authorizing  insurance  by  mort- 
gagee if  plaintiff's  covenant  to  keep  property  insured  was 
not  kept.  Proofs  of  loss  furnished  to  the  other  company 
were  executed  by  plaintiff",  //t'/r/,  that  plaintiff's  covenant 
in  mortgage  to  insure  was  not  broken  until  there  was  de- 
fault on  his  part,  and  he  could  be  put  in  default  only  by 
refusal  or  neglect  to  procure  the  insurance  after  some  soit 
of  notice  or  demand.  There  was  no  ratification  by  him  of 
the  insurance  obtained  by  the  mortgagee  so  as  to  make 
the  procuring  of  it  his  act.  That  the  act  of  the  mort- 
gagee cannot  be  so  far  regarded  as  the  act  of  Do  ran  as  to 
violate  clause  in  the  policy.     It  was  not  other  insurance, 

Srocured  by  him  within  the  meaning  of  the  first  condition, 
lut  Held,  that  the  loss  should  have  been  apportioned 
undti'  the  other  condition,  and  that  refusal  of  trial  court 
to  so  charge  was  error.  Doran  v.  Franklin  Fire  Ins.  Co, 
10  Ins.  L.  J.  842.     1881.     N.  Y. 


59  Up.  Can. 

)olicy  with 
terates  as  a 
t.  Putnam 
i80. 

>n  existence 
)rior  policy 
;nd  increase 
prior  insiir- 
Held,  error ; 
was  avoid- 
ition  subse- 
election  of 
d  not,  ipso 
rtown  Fire 

ion  provid- 
er insurance 
a  providing 
ixistence  of 
r  insurance, 
s  was  made 
intiff.  The 
ce  by  mort- 
nsured  was 
er  company 
fs  covenant 
ere  was  de- 
ult  only  by 
r  some  sort 
1  Ijy  him  of 
18  to  make 
t"  the  mort- 
Ooran  as  to 
I'  insurance, 
t  condition, 
ipportioned 
trial  court 
ire  Ins.  Co, 


SUrPLBMBNT. 


OVERVALUATION. 


401 


§  1.  Overvaluation  to  render  insurance  void  must  not 
only  be  extravagant,  but  must  have  been  intentionally 
made  in  bad  faith.  The  question  is  proper  to  be  deter- 
mined by  a  jury,  and  their  verdict  is  conclusive.  Miller 
v.  Alliance  Ins.  Co.  7  Fed.  Rep.  649.  U.  S.  Circuit, 
N.Y. 

§  2.  Condition  provided  that  if  assured  should  insure 
his  property,  or  cause  the  same  to  be  described  otherwise 
than  as  it  really  exists,  to  prejudice  of  company,  or  shall 
misrepresent  or  omit  to  communicate  any  circumstance 
which  is  material  to  be  made  known  to  the  company  in 
order  to  enable  them  to  judge  of  the  risk  they  undertake, 
such  insurance  shall  be  of  no  force  in  respect  of  property 
in  regard  to  which  the  misrepresentation  or  omission  is 
made.  In  application  assured  stated  value  to  be  $900, 
and  obtained  insurance  for  $600.  Jury  found  that  actual 
cash  value  was  $450,  but  that  assured's  representation 
was  made  in  good  faith,  and  that  he  had  not  been  guilty 
of  any  fraud.  Held,  that  the  question  of  value  was  a 
material  fact,  and  the  representation  being  untrue,  policy 
was  thereby  rendered  void.  That  it  was  immaterial 
whether  such  representation  was  in  good  faith  or  fraud- 
ulently made.  Sly  v.  Ottawa  Agricultural  Ins.  Co.  29 
Up.  Can.  C.  P.  557.     1879.     See  a.  c.  29  Up.  Can.  C.  P.  28. 

PAROL  CONTRACT. 

§  1.  Plaintiff,  a  merchant,  discounted  paper  with  his 
bankers  on  security  of  warehouse  receipts,  and  at  same 
time  signed  an  application  for  insurance  upon  the  prop- 
erty, to  be  held  by  the  bank  as  additional  security.  The 
bank's  agent  was  also  agent  of  the  defendant.  The  agent 
either  charged  plaintiff  with  premium  or  received  it  in 
cash,  but  did  not  then  liU  up  and  sign  any  interim  receipt 
or  any  other  wi'itten  contract,  stating  he  was  too  busy  to 
do  so.  Home  office  of  defendant  was  advised  of  the  in- 
surance, but  not  of  the  mode  of  effecting  it,  and  after  the 
losi  agent  filled  up  and  delivered  an  interim  receipt. 
Vol.  II.-20 


■  ii 
\ 

k  Hi 


i:    ,  ^! 

!•  ;| 

i'l 

::'l; 

..  :  f;^ 

Sfi'll 

■  H 


I 


T 


vmt 


;  i' 


402 


SUPPLEMENT. 


There  was  no  evidence  of  any  express  authority  to  the 
agent  to  enter  into  verbal  contracts,  while  application 
stated  that  insurance  was  on  usual  terms  and  conditions 
of  the  company.  One  of  these  conditions  was  that  no 
receipt  or  acknowledgment  of  insurance  should  be  bind- 
ing unless  made  by  and  on  one  of  defendant's  printed 
forms,  and  signed  by  their  authorized  agent.  Held,  tliat 
the  question  of  liability  must  be  tested  or  considered  as  it 
stood  at  time  of  fire,  and  that  tliere  was  no  sufiicient  con- 
tract of  insurance.  Parsons  v.  Queen  Ins.  Co.  29  Up.  Can. 
C.  P.  188.     1878. 

§  2.  When  by  conversation  of  applicant  with  agent, 
the  mutual  understanding  is  that  future  insurance  is  to 
be  made  in  usual  way  by  force  of  written  policies,  and 
the  choice  of  companies  and  management  of  details  are 
left  to  the  agent,  a  promise  by  him  "  to  keep  applicant 
insured  "  is  inoperative  to  effect  a  sufficient  parol  contract 
of  insurance.  Sargent  v.  National  Fire  Ins.  Co.  10  Ins.  L. 
J.  852.     1881.     N.  Y. 

§  3.  The  extent  of  agent's  authority  was  permission 
granted  to  him  by  company  to  solicit  and  receive  appli- 
cations for  insurance,  which  were  to  be  presented  by  him 
to  the  company  for  consideration,  and  if  accepted  he 
would  be  entitled  to  a  certain  commission.  An  applica- 
tion was  signed  and  delivered  to  this  agent,  who  stated 
to  applicant,  on  receiving  it,  that  "  risk  attached  from 
noon  of  that  day."  Application  was  not  presented  to 
company  until  next  day,  but  during  the  meantime  prop- 
erty wur.  destroyed  by  fire.  The  application  was  rejected, 
and  applicant  brought  suit  and  sought  to  maintain  it  on 
a  parol  contract  with  the  agent.  Held,  that  agent  had 
no  authority  to  bind  the  company  by  contract.  To  con- 
vert a  proposition  into  a  contract,  it  is  not  sufficient  to 
show  strong  probability  that  it  would  have  been  accepted  ; 
acceptance,  actual,  final  and  irrevocable,  must  be  proved. 
Stockton  V.  Firemen's  Ins.  Co.  10  Ins.  L.  J.  834.  1881. 
La. 


ty  to  tlio 
pplication 
;onditioim 
3  that  no 
be  bind- 
s  printed 
lldd,  that 
ered  as  it 
3ient  con- 
'  Up.  Can. 


til  agent, 
nee  is  to 
icies,  and 
etails  are 
applicant 
1  contract 
10  Iu8.  L. 


erraission 
[ve  appli- 
by  him 
pted   he 
applica- 
lo  stated 
led  from 
lented  to 
me  prop- 
rejected, 
in  it  on 
rent  had 
To  con- 
icient  to 
.ccepted ; 
I  proved. 
1881. 


SUPPLEMENT. 


rSEMIUM. 


408 


§  1.  A  condition  which  provides  that  no  insurance 
shall  be  considered  to  be  binding  until  actual  payment  of 
the  premium,  is  not  governed  by  the  statute  relating  to 
conditions  of  insurance  or  variations.  That  Act  relates 
to  contracts  of  insurance  which  have  been  made.  The 
above  condition  refers  to  a  precedent  act  to  be  done,  with- 
out  which  there  is  to  be  no  contract.  Geraldi  v.  Provin- 
cial Ins.  Co.  29  Up.  Can.  C.  P.  321.     1878. 

PROOFS  OF  LOSS. 

§  1.  Denial  of  all  liability  waives  proofs  of  loss,  and 
also  clause  limiting  time  in  which  suit  must  be  brought. 
It  is  a  well  settled  principle  of  the  law  of  contracts,  as  ap- 
plicable to  contracts  of  insurance  as  to  any  other  class  of 
contracts,  that  if  one  party  to  a  contract  gives  notice  that 
he  will  not  perform  his  part,  such  refusal  is  of  itself  a 
breach  of  the  contract,  and  the  other  party  in  suing  upon 
it  need  not  allege  performance  or  readiness  to  perform  con- 
ditions which  he  would  have  otherwise  been  required  to 
perform,  or  offer  to  perform,  before  commencing  suit. 
Home  Ins.  Co.  v.  Gaddis,  10  Ins.  L.  J.  774.     1878.    Ky. 

§  2.  When  condition  of  insurance  requires  statement  of 
loss  to  be  sworn  to  by  assured,  his  failure  to  make  such 
oath  renders  statement  defective  in  a  material  respect. 
Spooner  v.  Vermont  Mut.  Ins.  Co.  12  Rep.  764.  1881. 
Vt.    s.  0.  10  Ins.  L.  J.  737. 

§  3.  Defects  in  proofs  of  loss  must  be  specifically  point- 
ed out ;  otherwise  they  are  waived.  Argall  v.  Ins.  Co.  84 
N.  C.  355.     1881. 

§  4.  When  assured  has  made  an  honest  mistake  in 
his  proofs  of  loss  as  to  a  material  fact,  he  may  on  the  trial 
give  evidence  to  correct  it,  where  it  will  not  operate  as  a 
surprise  to  the  company.  The  mistake  in  this  case  related 
to  cause  and  origin  of  fire.  Waldeck  v.  Springfield  F.  and 
M.  Ins.  Co.  12  Rep.  768.  1881.  Wis.  8.  o.  10  Ins.  L.  J. 
930. 


404 


SUPPLEMENT. 


!  \ 


i  > 


§  5.  The  effect  of  failure  to  object  to  proofs  of  loss  as 
a  waiver  cannot  be  obviated  or  removed  by  fact  that  de- 
fects were  not  known  at  time.  It  is  the  duty  of  company 
or  its  agent  to  ascertain  whether  proofs  furnished  comply 
with  condition.  Miller  v.  Alliance  Ins.  Co.  7  Fed.  Rep, 
649.     1881.     U.  S.  Circuit,  N.  Y. 

§  6.  Assured,  having  been  misled  by  acts  and  declara- 
tions of  companv's  adjuster,  is  excused  from  furnishing 
proofs  of  loss  within  the  thirty  days  as  prescribed  by 
policy  in  suit.  This  may  be  so  held  on  the  ground  of 
"  mistake  "  under  Insurance  Policy  Act,  R.  S.  O.  cL.  162. 
Robbins  v.  Victoria  Mutual  Ins.  Co.  31  Up.  Can.  C.  P. 
562.     1881. 

§  7.  Policy  required  that  proofs  of  loss  should  be 
made  and  forwarded  to  company  as  soon  as  possible  after 
the  happening  of  the  fire  by  which  loss  occurred.  The 
fact  was  that  proofs  thus  required  were  not  furnished 
until  nearly  three  months  after  the  fire.  There  was  some 
evidence  explanatory  of  the  delay.  Held,  that  without 
such  evidence  lapse  of  three  months  would  be  too  late, 
but  that  with  it,  the  question  as  one  of  reasonable  time 
was  proper  to  be  submitted  to  and  determimed  by  the 
jury.  Home  Ins.  Co.  v.  Davis,  10  Ins.  L.  J.  754.  1881. 
Pa. 

See  Waiver,  §  4. 


I 


PLEADING  AND  PRACTICE. 

§  1.  Report  of  referee  as  to  facts  is,  like  verdict  of  a 
jury,  conclusive  in  a  case  of  conflict  of  evidence,  and  is, 
like  such  verdict,  to  be  set  aside  only  when  the  finding  of 
fact  is  clearly  against  the  weight  of  evidence.  Putnam  v. 
Commonwealth  Ins.  Co.  18  Blatch.  368.     1880. 

§  2.  Where  terms  of  policy  are  set  out  in  declaration, 
specific  performance  of  all  conditions  precedent  must  be 
averred,  otherwise  demurrable.  Perry  v.  Phoenix  Ins.  Co. 
24  Alb.  L.  J.  519.     1881.     U.  S.  Circuit. 

§  3.  When  terms  of  policy  are  set  out  in  declaration, 
compliance  with  conditions  precedent  must  be  specifically 


fs  of  loss  as 
st  that  de- 
)f  company 
led  comply 
Fed.  Rep, 

nd  declara- 
furnishing 
scribed  by 
ground  of 
0.  c::.  162. 
Can.  C.  P. 

should  be 
isible  after 
rred.  The 
furnished 
was  some 
it  without 
too  late, 
aable  time 
ed  by  the 
.'54.     1881. 


irdict  of  a 
ce,  and  is, 
finding  of 
Putnam  v. 

eclaration, 
b  must  be 
ix  Ins.  Co. 

eclaration, 
pecifically 


SUPPLEMENT. 


405 


averred,  otherwise  pleading  is  bad  on  demurrer     Perry 
V.  Phoenix  Ins.  Co.  8  Fed.  Rep.  643.     188 1.    U.  S.  Circuit 

iV.  1. 

§  4.  Form  of  case  agreed  upon  for  submission  to  Court 
—a  case  stated  for  the  opinion  of  the  Court  in  the  nature 
of  a  special  verdict.  Hagaman  v.  AUemania  In?  Co  10 
Ins.  L.  J.  838.     1881.    Pa. 

§  5.  Complaint  should  not  only  aver  an  insurable  in- 
terest at  time  of  issue  of  policy,  but  also  at  time  of  loss. 
Home  Ins.  Co.  v.  Duke,  10  Ins.  L.  J.  857.     1881.     Ind. 

Questions  fob  Court  and  Jury. 

See  OTervaluation,  §  1 ;  Proofs  of  Loss,  7. 

REFORMATION. 

§  1.  To  warrant  reformation  of  policy  mistake  must 
be  mutual,  and  the  facts  necessary  to  prove  such  mistake 
must  be  established  by  clearest  and  plainest  evidence. 
Farmer's  Ins.  Co.  v.  Butler,  24  Alb.  L.  J.  399.  1881. 
Md. 

§  2.  When  agent  of  company  intrusted  with  power  to 
make  and  issue  policies,  and  the  assured  fully  and  frankly 
discloses  all  facts  material  to  the  risk,  and  the  agent  in 
making  out  the  policy,  through  fraud  or  mistake,  fails  to 
state  such  facts,  such  error  or  fraud  cannot  be  relied  upon 
as  a  defense,  and  a  court  of  equity  will  reform  the  policy 
so  as  to  make  it  express  the  real  contract  between  the 
parties.  Ben  Franklin  Ins.  Co.  v.  Gillett,  24  Alb.  L  J. 
518.     1881.     Md. 


REMOVAL  CAUSES  TO  UNITED  STATES  COURT. 


§ 


1.  A  uniform  rule  to  be  drawn  from  the  various  de- 
cisions upon  question  of  right  of  removal  to  U.  S.  Circuit 
Court  under  Act  of  Congress,  1875,  is  about  as  follows  in 
substance  :  The  latest  term  at  which  a  cause  can  be  removed 
is  at  the  first  term  when  it  is  at  issue  on  its  merits,  or 


T 


-m 


}■■! 


yi 


?!■ 


406 


SUPPLEMENT. 


should  be  at  issue  but  for  the  fault  of  the  petitioner. 
Whether  the  business  of  the  Court  will  admit  of  the  case 
being  then  tried,  or  the  parties  are  otherwise  ready,  are 
not  material  iuquiries.  If  the  issue  is  not  made  up  until 
after  the  term  fixed  by  the  law  of  procedure  of  the  State 
as  the  trial  term,  the  cause  cannot  be  removed.  Wheeler 
V.  Liv.,  L.  and  G.  Ins.  Co.  10  Ins.L.  J.  794.  f*  1881.    N.  H. 

RENEWAL. 

§  1.  Renewal  by  company  or  its  agent  with  knowl- 
edge of  forfeiture,  waives  it.  Law  v.  Hand-in-Hand  Ins. 
Co.  29  Up.  Can.  C.  P.  1.  1878.  Sliafer  v.  Phcenix  Ins. 
Co.  12  Rep.  736.     1881.     Wis. 

Sec  Warranty  and  Representation,  §  8. 

Repairs. 

Bee  Increase  of  Risk,  §  2. 

RISK. 

8  1.  Policy  insured  certain  household  furniture  de- 
scribed as  "all  contained  in  Louse  McMillan  St., 

Providence,  R.  I."  At  time  of  fire  furniture  had  been  re- 
moved and  was  in  another  house.  Defendant  was  not 
informed  of  the  removal.  Plaintiff  nonsuited  on  ground 
that  contract  was  that  goods  should  remain  in  or  be  in 
house  on  McMillan  Street.  Held.,  that  there  was  no  war- 
ranty in  description  as  to  location,  and  that  liability  of 
company  was  not  limited  to  a  loss  in  tlie  particular  house 
described.  To  thus  limit  lial)ility  company  should  have 
expressly  prohibited  removal  without  consent.  Lyons  v. 
Providence  Ins.  Co.  10  Ins.  L.  J.  733.     1881.    R.  I. 


•     STORING  AND  KEEPING. 

§  1.  During  occupation  of  store  by  assured  he  used 
kerosene  and  naphtha  for  j)urj)ns(!  of  lighting  the  same, 
using  naphtha  for  the  first  wei'k  he  was  there,  and  kciro- 
sene  for  remainder  of  the  time.  During  same  period 
naphtha  was  also  used  in  the  store  by  a  stranger,  to  (!x- 


SUPPLEMENT. 


407 


►etitioner. 
the  case 

eady,  are 
up  until 
he  State 
Wheeler 

I    N.H. 


b  knowl- 
land  Ins. 
oenix  Ins. 


liture  de- 
illan  St., 
been  re- 
was  not 
n  ground 
I  or  be  in 
3  no  war- 
ibility  of 
lar  house 
uld  have 
Lyons  v. 


I  he  used 
;he  same, 
md  k(!io- 
e  period 
er,  to  (!x- 


hibit  a  stove  of  which  he  had  the  agency.    There  was  no 
naphtha  on  premises  at  time  of  fire,  nor  any  kerosene,  ex- 
cept a  small  quantity  used  for  purpose  of  filling  lamps  in 
store.     Kerosene  was  permitted  for  lights.     Condition 
provided  that  "  if  in  said  premises  there  be  kept    *     *    * 
petroleum,  naphtha,  gasoline,  benzine     *     *     *    o^  there 
be  kept  or  used  therein,  caraphene,  spirit  gas,  or  any  burn- 
ing fluid,  or  any  chemical  oils,  policy  should  be  void. 
Ilel^,  that  the  naphtha  was  not  kept  within  meaning  of 
condition ;  that  the  term  meant  keeping  as  objects  of  mer- 
chandise or  manufacture.    That  the  naphtha  could  not  be 
deemed  to  be  a  hurtling  fluid  under  last  clause  of  condi- 
tion ;  being  specifically  named  in  first  part,  it  could  not 
be  so  assumed  without  evidence  that  it  was  so  known. 
That  the  clause  against  keeping  or  using  should  be  con- 
strued as  affecting  the  policy  only  so  long  as  the  articles 
are  kept  or  used.     Putnam  v.  Commonwealth  Ins.  Co  18 
Blatchf.  368.     1880. 


» 
* 


§  2.  Policy  contained  condition  that,  if  * 
"  petroleum,  fluid,  or  crude  earth  or  coal  oils  * 
should  be  used  or  kept,  it  should  be  void,  except  kerosene 
oil  may  be  used  for  lights  in  dwellings."  Property  insured 
was  a  factory.  There  was  no  permission  in  policy  to  use 
any  kind  of  oil.  At  time  of  fire  there  were  used  for  lights 
two  ordinary  lanterns  filled  with  "  headlight  oil."  Held, 
that  headlight  oil  being  a  refined  petroleum  product,  was 
within  the  condition,  and  its  use  constituted  a  breach. 
Couch  V.  Rochester  German  Ins.  Co.  13  N.  Y.  Week.  Dig. 
254.     1881.     N.  Y.  Sup. 

§  3.  Issue  by  company  with  knowledge  of  use  of  pro- 
hibited article,  operates  as  a  waiver  of  the  condition,  and 
if  such  knowledge  is  possessed  at  time  of  issue  of  policy, 
it  is  immaterial  how  or  when  acquired.  Couch  v.  Roch- 
ester German  Ins.  Co.  13  N.  Y.  Weekly  Dig.  254.  1881. 
N.Y.  Sup. 

SuniiOGATION. 
See  Who  May  Sue,  §  3. 


408 


SUPPLEMENT. 


i 


n 


Ir  s 


:tl, 
ill 


I 

J    4  !r 


i^ 


1  ■ 


I 


Brogan  v.  Maniifecturers'  &  Merchants'  Fire  Ins. 


TITLE. 

§  1.  Clause  in  policy  making  loss  payable  to  a  third 
party  is  notice  to  company  of  such  party  having  some  in- 
terest. Parson  v.  Queen  Ins.  Co.  2d  Up.  Can.  188,  210. 
1878. 

§  2.  Application  contained  following :  "  Q.  State 
nature  of  your  title;  whether  fee  simple,  &c.  If  others 
are  interested,  give  name,  interest  and  value?  Ans.  Owner. 
Q.  What  incumbrance,  if  .any,  is  now  on  the  property? 
Ans.  $60,  balance  of  payment,  to  be  paid  in  four  years." 
It  appeared  that  assured  had  purchased  the  land  from  a 
minor  for  $60,  to  be  paid  for  and  deed  to  be  delivered  in 
four  years,  when  minor  became  of  age ;  that  house  was  so 
built  as  to  be  capal)le  of  removal.  AH  these  facts  were 
known  to  company's  agent  when  policy  issued.  Held, 
that  defense  of  fraudulent  representation  was  not  sustain 
able. 
Co.  29  Up.  Can.  C.  P.  414.     1878. 

§  3.  Semble,  that  when  insurance  is  obtained  upon  a 
written  application,  although  assured  may  have  therein 
agreed  to  be  bound  by  conditions  of  policy,  the  condition 
requiring  statement  of  interest  when  not  sole  and  uncon- 
ditional ownership,  is  inoperative  when  assured  was  not 
questioned  in  regard  to  title,  «fec.,  in  the  application. 
O'Neill  V.  Ottawa  Agricultural  Ins.  Co.  30  Up.  Can.  C.  P. 
151.     1879. 

§  4.  A  representation  that  assured  "owns  land  in  fee 
Bimple,"  is  not  rendered  untrue  by  the  fact  that  price  has 
not  been  paid,  he  holding  a  deed.  O'Neill  v.  Ottawa 
Agricultural  Ins.  Co.  30  Up.  Can.  C.  P.  151.     1879. 

§  5.  Assured  was  in  possession  of  certain  furniture 
under  a  contract  of  purchase,  with  condition  that  title  was 
not  to  pass  until  price  was  paid.  Loss  was  made  payable 
to  vendor  as  interest  migiit  appear.  Policy  contained 
clause  that  if  the  interest  of  assured,  whether  as  owner, 
trustee,  consignee,  factor,  agent,  mortgagee,  lessee  or  other- 
wise, be  not  truly  stated,  it  should  be  void.  Assured  rep- 
resented property  as  hers.    Held,  that  insurance  was  void. 


to  a  third 

y  some  in- 

188,  210. 


Q.  State 
If  others 
18.  Owner, 
property  ? 
ur  years." 
nd  from  a 
livered  in 
ise  was  so 
'acts  were 
d.  Held, 
>t  sustain- 
Fire  Ins. 

id  upon  a 
e  therein 
condition 
id  uncon- 
I  was  not 
•plication. 
:!an.  C.  P. 

md  in  fee 
price  has 
.  Ottawa 
79. 

furniture 
i  title  was 
3  payable 
contained 
18  owner, 
or  other- 
ured  rep- 
wan  void. 


SCrPLEMBNT. 


409 


That  while  assured  had  an  insurable  interest,  it  was  not 
truly  stated  as  required.  That  the  clause  making  loss 
payable  to  vendor  was  not  equivalent  to  notice  that  he 
owned  the  furniture.  At  most  it  implied  that  he  had 
some  lien  or  some  interest  in  the  furniture  which  was  con- 
sistent with  title  and  ownership  in  assured.  Lasher  v.  St. 
Joseph  F.  &  M.  Ins.  Co.  13  N.  Y.  Weekly  Dig.  146.  1881. 
N.  Y.  Ct.  App.    B.  c.  10  Ins.  L.  J.  845. 

§  6.  Policy  provided  that  "  if  the  interest  of  the  as- 
sured be  any  other  than  the  entire,  unconditional,  and  sole 
ownership,  for  use  and  benefit  of  assured,  *  *  *  it 
must  be  so  represented  and  expressed  in  policy,  otherwise 
it  should  be  void.  Defendant  offered  to  prove  that 
grantors  of  plaintiffs  grantor  were  only  entitled  to  an 
easement  in  the  property.  Evidence  was  excluded.  Held, 
no  error ;  that  offer  was  only  in  substance  to  prove  a  de- 
fective title.  The  condition  in  question  refers  to  extent 
of  the  insurable  interest  of  plaintiff,  and  not  to  validity  of 
his  title.  So  long  as  he  had,  under  claim  of  right,  exclu- 
sive use  and  enjoyment  of  the  insured  property,  without 
any  assertion  of  an  adverse  right  or  interest  in  it  by  any 
other  person,  he  was  the  owner  of  the  property.  Miller 
V.  Alliance  Ins.  Co.  T  Fed.  Rep.  649.  1881.  U.  S.  Cir- 
cuit, N.  Y. 

See  Mortgagor  and  Mortgagee,  §  2.    Waiver,  6. 

Use  and  Occupation. 

See  Increase  of  Risk,  §  3.    Warranty  and  Representation,  8. 

VACANT  OR  UNOCCUPIED. 

§  1.  Condition  provided  that  "  this  policy  shall  not 
cover  unoccupied  buildings  unless  insured  as  such,  and  if 
premises  insured  shall  be  vacated  without  consent  in- 
dorsed *  *  *  "  insurance  should  be  void.  Assured 
having  left  premises  for  temporary  purpose  of  attending 
funeral  of  a  friend,  Held,  that  there  was  no  breach  of  the 
conditions.  Franklin  Fire  Ins.  Co.  v.  Kepler,  10  Ins.  L.  J. 
784.     1880.    Pa. 


.If 


m 


1 


410 


8UPPLEMBNT. 


hi 


i  ■ 


WAIVER. 

§  1.  The  fact  that  a  statute  makes  policy  void  in  cer- 
tain event8,  does  not  prevent  a  revival  thereof  by  acts  rec- 
ognizing its  continued  existence,  and  dealing  with  as- 
sured, and  allowing  him  to  pay  money  or  alter  his  posi- 
tion on  the  assumption  that  he  is  still  insured.  Law  v. 
Hand-in-Hand  Ins.  Co.  29  Up.  Can.  C.  P.  1.    1878. 

§  2.  Policy  having  been  assigned  before  a  loss  with- 
out written  consent,  as  required  by  its  terras,  but  with 
verbal  assent  of  the  agent,  Held,  that  validity  of  contract 
must  be  determined  by  law  and  not  by  stipulation  be- 
tween the  parties ;  and  although  parties  may  agree  that  a 
contract  which  they  have  voluntarily  reduced  to  writing 
shall  not  be  altered  or  modified  unless  the  agreement  for 
such  alteration  or  modification  be  evidenced  by  writing, 
yet  a  subsequent  agreement  by  parol  to  alter  or  modify 
will  be  as  valid  if  no  stipulation  had  been  in  the  original 
contract,  and  it  follows  that  having  consented  by  parol 
to  the  transfer,  defendant  is  as  much  bound  as  if  its  con- 
sent was  in  writing.  Home  Ins.  Co.  v.  Gaddis,  10  Ins.  L. 
J.  774.  1878.  Ky.  Co7itra,  Walsh  v.  Hartford  Ins.  Co. 
§  23,  page  346. 

§  3.  There  is  no  waiver  of  objections  to  a  certificate 
by  retaining  it  sixteen  days  after  its  receipt  before  mak- 
ing the  objection,  assured  having  an  opportunity  to  cor- 
rect or  amend  the  defect.  Gilligan  v.  Commercial  Ins.  Co. 
20  Hun,  93.  1880.  AflS'd  by  N.  Y.  Ct.  App.  (without 
opinion)  24  Alb.  L.  J.  480. 

§  4.  Where  a  written  agreement  for  appraisal  states 
expressly  that  it  is  to  determine  amount  of  loss  only,  and 
that  it  is  made  without  reference  to  other  questions  or 
matters  of  difference,  the  submission  cannot  be  construed 
as  a  waiver  of  defects  in  proofs  of  loss.  Gilligan  v.  Com- 
mercial Ins.  Co.  520  Hun,  {>3.  1880.  Affi'd  by  N.  Y.  Ct. 
App.  (without  opinion)  24  Alb.  L.  J.  480. 

§  5.  Policy  requiring  consent  in  writing  to  an  in- 
crease of  risk  notice  to  agent  does  not  operate  as  a  waiver 


SUPPLEMENT. 


411 


oid  in  cer- 
y  acts  rec- 
with  as- 
r  his  poai- 
.  Law  V. 
78. 

loss  with- 
but  with 
f  contrast 
[lation  be- 
ree  that  a 
;o  writing 
ement  for 
jr  writing, 
)r  modify 
e  original 
by  parol 
f  its  con- 
10  Ins.  L. 
I  Ins.  Co. 


certificate 
fore  mak- 
ty  to  cor- 
l1  Ins.  Co. 
(without 

isal  states 
only,  and 
istions  or 
3onstiued 
1  V.  Com- 
N.  Y.  Ct. 

to  an  in- 
a  waiver 


of  such  a  condition.    Pottsville  Mut.  Ins.  Co.  v.  Horan  10 
Ins.  L.  J.  771.     1881. 

I  6.  If  assured  correctly  states  his  interest  in  property 
at  time  he  obtains  the  insurance,  it  operates  as  a  waiver 
of  the  condition  requiring  it  to  be  stated  in  policy  of  any 
other  or  less  than  absolute  ownership.  Bredow  v.  Erie 
Co.  Mut.  Ins.  Co.  18  N.  Y.  Weekly  Dig.  211.  1881.  N 
Y.Sup. 

See  Encumbrance,  §  2.     Evidence,  1.     Mutual  Company,  5.     Other  In- 
surance, 3.     Proofs  of  Loss,  1,  3,  5,  6.    Renewal,  1.    Storing  and  Keeninff 
3.    Title,  3.  ^    ^' 


WARRANTY  AND  REPRESENTATION. 

§  1.  Policy  contained  condition  that  if  applicant 
should  make  an  erroneous  or  untrue  representation  or 
statement  in  application  or  diagram,  or  omit  to  make 
known  any  fact  material  to  the  risk,  policy  should  be 
null  and  void.  Company  set  up  breach  of  warranty  in 
stating  that  there  were  no  buildings  within  one  liundred 
feet  of  insured  property  other  tlian  those  mentioned  in  ap- 
plication, survey,  and  diagram,  whereas  there  were  other 
buildings.  Application  contained  a  number  of  questions, 
none  of  which  referred  to  existence  of  buildings  within 
one  hundred  feet.  Below  questions  was  a  square  space 
headed  "  Diagram,"  with  a  note  at  side,  "  Give  all  ex- 
posures within  one  hundred  feet,  and  mark  distances  be- 
tween buildings."  At  foot  of  application  "  it  is  hereby 
expressly  agreed  and  warranted  that  each  and  every  of  the 
answers  as  above  made  is  true,  and  that  the  same  and  this 
application,  survey  and  diagram  shall  be  part  of  the  in- 
surance contract  and  policy,  and  that  the  foregoing  is  a 
fiill,  just,  and  true  exposition  of  all  facts  and  circumstances, 
condition,  situation  and  value  of  property  to  be  insured, 
so  far  as  the  same  are  material  to  the  risk."  Held,  that 
warranty  set  up  was  not  established.  That  application 
showed  that  only  warranty  was  as  to  the  answers  to 
questions  none  of  which  related  to  distance  of  buildings; 
and  that  assured  was  bound  only  to  make  known  such 


* 


4 


412 


SUPPLEMENT. 


;  t' 


buildings  a5  vveie  material  to  the  risk.     Wilson  v.  Stand- 
ard Ins.  Co.  29  Up.  Can.  C.  P.  308.     1878. 

§  2.  Although  by  statute  when  an  indorsement  is 
made  upon  a  policy,  it  does  not  become  a  part  thereof  as 
a  warranty,  it  becomes  so  on  renewal  authorized  by  the 
same  statute.  Gauthier  v.  Canadian  Mut.  Ins.  Co.  29  Up. 
Can.  C.  P.  593.     1878. 

§  3.  Property  was  insured  as  a  tenement  dwelling. 
By  an  indorsement,  subsequently  made,  building  was  al- 
lowed "to  be  occupied  as  a  refreshmeut  room — no  liquor 
sold."  Building  was  occupied  by  a  tenant,  and  liquor  was 
sold  by  him,  but  without  knowledge  or  consent  of  assured. 
Held^  that  indorsement  created  a  warranty,  ana  inat  there 
was  a  breach  avoiding  the  insurance.  Gauthier  v.  Mutual 
Ins.  Co.  29  Up.  Can.  C.  P.  593.     1879. 

§  4.  Assured  stated  in  application  that  there  was 
only  one  stove  in  the  insured  premises,  when  in  fact  there 
were  two.  Held^  an  untrue  statement,  avoiding  the  in- 
surance. O'Neill  V.  Ottawa  Agricultural  Ins.  Co.  30  Up. 
Can.  C.  P.  151.     1879. 

§  5.  Policy  referred  to  application  and  survey  as 
part  of  it.  Back  of  application  was  hearlod  (''nf^ram,  with 
directions  as  to  filling  up.  Ther  w  e  two  Imildings, 
one  18x20,  and  another  smaller  >  thin  the  j't-escribed 

distance,  omitted  from  the  diagri;  Semhle^  th:  diagram 
was  part  of  application  within  m^  iiing  o^  condition  mak- 
ing statements  in  application  wari-antic  > ;  that  the  omis- 
sion of  the  two  buildings  constituted  a  breach  of  warranty ; 
but  that  a  statement  of  distance  between  buildings  as  190 
feet  instead  of  178  feet  was  so  slight  as  to  be  immaterial 
O'Neill  V.  Ottawa  Agrcultural  Ins.  Co.  30  Up.  Can.  C.  P. 
151.     1879. 

§  6.  Application  contained  following:  "^.  Is  there 
reason  to  fear  incendiarism,  or  has  any  threat  been  made  ? 
Ans.  No,"  It  appeai'ed  from  tiie  evidence  that  about  a 
week  before  application  was  made  for  the  insurance,  that 
a  servant  of  assured  had  threatened  to  beat  him,  and  lat- 
ter being  a  nervous  imd  timid  man,  being  alarmed,  ob- 


SUPPLEMENT. 


413 


1  V.  Stand- 


rsemenfc  is 

thereof  as 

sed  by  the 

Oo.  29  Up. 

dwelling, 
ng  was  al- 
-no  liquor 
liquor  was 
of  assured. 
itiiit  there 

V.  Mutual 


there  was 

fact  there 

3g  the  in- 

:!o.  30  Up. 


survey  as 
nam,  with 

buildings, 

f»rescribed 

diagram 

ition  mak- 

the  omis- 
warranty ; 
igs  as  U>0 
[imateriaL 
Can.  C.  P. 


.  Is  there 
Jen  made? 
t  about  a 
ance,  that 
1,  and  lat- 
irmed,  ob- 


tained the  insurance ;  that  he  had  set  up  and  watched  for 
a  night,  and  that  he  believed  premises  were  set  on  fire. 
Held,  that  plaintiff  was  not  entitled  to  recover ;  that  hav- 
ing admitted  his  own  lielief  in  the  danger  and  acted  upon 
it,  his  answer  to  the  question  in  the  application  was  un- 
true. Campbell  v.  Victoria  Mut.  Fire  Ins.  Co.  45  Up 
Can.  Q.  B.  412.     1880. 

§  7.  Condition  provided  that  "  company  would  not 
dispute  the  correctness  of  any  diagram  or  plan  prepared 
by  its  agent  from  a  personal  inspection."  Application  re- 
quired assured  to  state  all  buildings  within  one  hundred 
feet  of  insured  building,  and  assured  omitted  to  state  ex- 
istence of  a  small  building  used  for  storing  coal  oil  within 
that  distance.  A  diagram  was  made  and  filled  in  by 
agent  and  signed  by  him  in  his  own  name  as  well  as  that 
of  assured,  but  no  reference  was  made  to  this  building. 
Diagram  was  not  made  from  a  personal  inspection  at  the 
time,  but  from  a  previous  inspection  and  knowledge  there- 
by acquired.  Held,  that  even  if  assured  under  above  con- 
ditions would  be  relieved  from  effect  to  make  known  the 
building  in  question,  when  there  was  a  personal  inspection 
by  the  agent,  there  was  none  in  this  case,  as  condition  re- 
quired it  to  be  one  made  for  the  purpose  of  this  particu- 
lar insurance.  Quinlan  v.  Union  Fire  Ins.  Co.  31  Up. 
Can.  C.  P.  618.     1881. 

§  8.  Property  was  insured  as  a  frame  building  situ- 
ate on  west  side  of  Liberty  street  in  village  of  Fairhaven, 
Vermont,  as  per  diagram  No.  134,767  on  file  in  this  office. 
Policy  provided  that  any  plan,  survey,  or  description,  of 
property,  referred  to  should  be  considered  as  a  part  of  it. 
The  diagram  referred  to  was  a  map  or  plan  in  which 
property  insured  was  laid  down  as  being  on  one  side  of 
Liberty  street,  with  a  dwelling-house  on  one  side,  about 
thirty  feet  distant,  a  hotel  barn  on  the  other  side  about 
fifty  feet  distant,  and  hotel  on  same  side,  distance  not  in- 
dicated. There  was  a  barn  or  stable  at  that  time  stand- 
ing nineteen  feet  from  the  insured  property,  which  was 
not  represented  in  the  diagram.  The  distance  between 
the  hotel  barn  and  insured  property  was  actually  36^  feet 
as  found  by  the  referee,  instead  of  50  feet  as  stated  in  dia- 


\ 

1 1 


H'  ;  I 


414 


SUPPLEMENT. 


gram.  Ileld^  tliat  there  was  a  breach  of  warranty  in  re- 
spect to  the  diagram,  and  that  plaintiff  could  not  recover. 
Gilligan  v.  Commercial  Ins.  Co.  20  Huu,  93.  1880. 
Affi'd  by  N.  Y.  Ct.  of  App.  (without  opinion)  24  Alb.  L. 
J.  480. 

§  9.  If  by  terms  of  policy  misrepresentations  are  con- 
verted into  warranties  by  stipulation,  an  untrue  answer 
will  avoid  the  policy,  without  reference  to  materiality, 
Graham  v.  Firemen's  Ins.  Co.  13  N.  Y.  Weekly  Dig.  338. 
1881.     N.  Y.  Ct.  App. 

Sec  Risk,  §  1. 

WHO  MAY  SUE. 

§  1.  When  policy  is  issued  to  a  mortgagor  with  the 
loss  payable  to  the  mortgagee,  suit  must  be  instituted  in 
name  of  former,  and  cannot  be  instituted  in  name  of  party 
to  whom  loss  is  made  specifically  payable.  The  contract 
is  with  the  mortgagor,  and  any  violation  hjhim  of  its  con- 
ditions voids  the  insurance.  Friemansdorf  v.  Watertown 
Ins.  Co.  1  Fed.  Rep.  G8.     1879. 

§  2.  The  provision  in  policy  making  loss  payable  to 
a  third  party  operates  to  enable  company  in  fulfillment  of 
that  covenant  to  pay  party  named,  and  set  up  such  pay- 
ment in  an  action  by  assured.  But  if  loss  is  not  s'  paid, 
a  breach  of  the  covenant  with  assured  is  committed  and 
he  is  the  pei'son  in  whom  the  right  of  action  for  such 
bleach  is  vested ;  he  is  the  proper  person  to  sue.  Mc- 
Queen V.  Pha3nix  Mut.  Fire  Ins.  Co.  4  Can.  Sup.  660. 
1880. 

§  3.  Several  insurance  companies  upon  payment  of  a 
loss,  caused  by  negligence  of  a  third  party,  become  subro- 
gated pro  tanto  to  claim  of  assured  against  wrongdoer. 
Where  common  law  procedure  prevails  action  of  insur- 
ance companies  would  necessarily  be  brought  in  name  of  the 
insured.  But  under  Code  of  Practice  (Wis,)  companies 
must  be  joined  with  assured  as  plaintiff,  unless  made  de- 
fendant, on  acc'^unt  of  refusal.  Pratt  v.  Radford,  52  Wis. 
114.     1881. 


ity  in  re- 
}  recover. 
I.  1880. 
4  Alb.  L. 

8  are  cou- 
e  answer 
Eiteriality, 
Dig.  338. 


with  the 
sitiited  in 
!  of  party 
!  contract 
of  its  con- 
atertown 

ayable  to 
llment  of 
mch  pay- 
b  s'  paid, 
tted  and 
for  such 
;ue.  Mc- 
5up.  660. 

ment  of  a 
ne  8ubro- 
rongdoer. 
of  insur- 
inieof  the 
ompanies 
made  de- 
,  52  Wis. 


INDEX. 


'  I 


INDEX. 


The  Utiferences  are  to  Pages  and  Scdionn. 

ACTION, 

on  adjustment,  3  §  !). 

not  maintainable  on  policy  after  adjustment  and  payment  without 
firs!-  return  of  the  money,  2  §  5. 

parties  to,  (Sec  Wno  may  Sue.) 

ADJUSTER, 

acts  and  declarations  of,  3  §  8;  105  §  19;  ItO  §  .)3. 

authority  of,  as  to  criminal  proceedini^s,  9  §  !J4. 

authority  to  waive  limitation  clause,  10  §  37. 

inducing  assured  to  delay  proofs,  97  §  19. 

representations  of,  ;58  §  12. 

waiver  by,  224  §  42 ;  SIC.  §  22 ;  348  §  27,  3:j. 
(See  Adjustment.) 
ADJUSTMENT, 

authority  of  agent,  2  §  8 ;  4  g  8 ;  1 1  §  44 ;  10  §  70. 

effect  on  limitation  clause,  358  §  27. 

elfect  of,  on  breach  of  warranty,  358  §  27;  372  §  95. 

estoppL  1  by,  93  §  0 ;  99  §  32. 

evidence  o^f  experts  in,  107  §  34;  112  §  07. 

made  subject  to  terms  and  conditions  of  policy,  2  §  4. 

as  an  agreement  must  bind  both  parties,  1  §  2. 

ert'ect  of  company  joining  in,  7!)  §  19. 

does  not  ])rcvent  "tfect  of  violation  of  conditions,  2  §  0. 

no  evidence  of  value  as  to  third  parties,  2  §  7. 

action  does  not  lie  upon,  alone,  2  jj  9. 

may  be  adopted  by  jury  as  evidence  of  value,  102  §  3. 

and  payment  is  an  accord  and  sitisfaction  ;  if  no  fraud  a  bar,  3  §  13, 

procureil  by  fraud  not  binding,  3  §  11. 

evidence  neceasary  to  sustain  count  on,  2  §  10, 

rescission  of,  obtiinetl  by  fraud,  1  §  1. 

Willi  minor  obtained  by  frauil.  2  §  5. 

with  firm  tlirtugli  a  minor,  3  ^  5. 

no  a  Uion  maintainable  on  policy  without  first  returning  money  re- 
ceived, 2  §  5. 

waiver  in.  348  §  32 ;  349  §  39  ;  350  §  40. 

witli  assured  does  not  bind  mortgigeo,  180  §  30. 

receipt  binding  only  as  to  amount  paid  on  particular  item,  1  §  3. 

ADMfNISTRATOR, 

when  may  sue,  384  §  2  ;  388  g  15,  10. 

AOENT, 

authorityof,  5§  11,  12;0§l0;7§18;10§3fl:  14 §60,61;  15  §64, 

05,  00 ;  17  §  75 ;  18  §  80,  85;  389  i5  1. 
facts  necessary  to  establish  authority  of  general,  9  §  32,  33 ;  1 1  §  43. 
acts  within  apparent  scope  of  authority  binds  company,  11  §  47. 

Vol.  II.— 27 


ill 


418 


INDEX. 


AGENT— cantinv^d. 

adoptiou  of  arbitrator  not  within  apparent  scope  of  authority,  4  §  8. 

authority  not  limited  by  written  instructions,  4  §  5. 

autliority  not  qualified  by  word  "surveyor,"  1]  §  48. 

df^legation  of  authority,  9  §  28;  13  §  54. 

authority  of,  established  by  custom,  4  §  3. 

commission  to  two,  jointly  expires  on  death  of  oi;e,  4  §  4. 

clerk  ot,  Irinds  company,  5  §  10. 

authority,  question  Cor  jury,  Id  §  56. 

authority  under  Maine  statute,  2u  §  95. 

authority  as  to  adjustment,  4  §  8;  11  §  44;  16  §  70. 

authority  of,  to  write  out  of  territory,  21  §  102. 

authority  to  waive  written  consent,  10  §  35. 

authority  to  waive  limitation  clause,  10  §  37. 

authority  of,  in  reference  to  estoppel,  93  §  1. 

authority  to  waive  proofs,  11  §  46. 

authority  to  consent  to  otiier  insurance,  20  §  93. 

autliority  to  institute  criminal  proceedings,  9  §  34. 

authority  assignment,  8  §  25. 

authority,  notice  of  loss,  8  §  26. 

authority  to  cancel,  6  §  14;  10  §  41 ;  300  §  2. 

authority  to  revive  cancelled  policv,  15  §  68. 

authority  of,  to  make  parol  contract,  7  §  24;  13  §  58;  230  §  5;  232 

§  9;  234  §  22;  236§  33,  34;  401  i5  1 ;  402  §  3. 
authority  to  waive,  11  §  44 ;  16  §  70;  17  §  76 ;  18  §  84 ;  22  §  104 ;  410  §  2. 
broker  of  assured,  19  tf  86. 

broker  may  be  company's  agent.  4  §  2;  5  §  9;  14  §  59. 
cannot  be  of  both  parties,  IS  §  83 ;  19  §  91 ;  21  §  100. 
solicitor  of  agent  of  company,  19  §  87. 
countersigning  by  partner  of  agent  in  firm  name,  0  §  15. 
countersigning  by,  7  §  19. 
effect  of  agency  clause  in  policy,    9  §  31 ;  10  §  43;    13  §  57;  14 

§61,63;  15  §67;  17  §79;  18  §81;  19  §  90. 
effect  of  representation  as  to  the  law,  277  §  18. 
knowledge  of,   as  aflecting  terms  of  policy,  14  §  63;  16  §  71;  112 

§65;  227§54  ;    323§4;  325§9;  326§  12;  337  §  18  ;  313§2; 

343 §  8  ;  344  §  11,  15  ;    394  §  1 ;  399  t?  5  ;  400  §  3;  410  §  2. 
knowledge  of  breach  of  warranty,  360  §  34,  35,  37;  361  §  39,  40,  41. 
knowledge  of,  as  utfecting  concealment,  65  §  7. 
knowledge  of  other  insurance,  20  §  99  ;  93  §  1 ;  218  §  5;  235  §  45; 

226  §  51 
knowledge  of  storing  or  keeping,  299  §  13;  301  §  23. 
knowledge  of  vacant  or  unoccupied,  96  §  17;  329  §  5;  333  §  13;  334 

§23:  347  §24. 
knowledge  incrense  of  risk,  410  §  5. 
knowledge  of,  does  not  alter  terms  of  policy,  97  §  33 ;  274  §  3 ; 

§11. 

knowledge  of,  as  an  estoppel,  95  §  14;  97  §  31,  33  ;  98  §  34,  25 
§  27,  28,  30;  100  §  35,  37  ;  393  S  2. 

knowledge  of,  as  evidence  of  value,  106  §  33. 

renewal  by,  with  knowledge  of  forfeiture,  340  §  21 ;  350  §  45 ;  406  §  I. 

notice  to  soliciting,  99  §  31 ;  100  §  3(i. 

assurance  l)y,  that  d  scription  covers  as  an  estoppel,  100  §  34. 

notice  of  intended  act,  96  §  17. 

estoppel  by  failure  to  insert  interest  in  policy,  00  §  18. 

no  estoppel  by  promise  to  broker,  100  §  33. 

no  estopf^el  by  knowledge  ot,  when  charged  v/ith  fraud  and  col- 
lusion with  assured,  94  §  7. 


aii) 


09 


>rity,  4  §  8. 


INDBX. 


419 


!30§5;232 
04;  410  §2. 


3  §  57 

14 

0§71; 
8  ;  ai2 
10  §  3. 
j  39,  40 

113 

§2; 

41. 

i;  235  §45; 

i2§  10; 

334 

!74§3; 

375 

§  24,  25 

;  09 

4r);40G§l. 

'§34. 

id  and 

col- 

AGENT — continued. 

estoppel  by  fraud  or  mistake,  405  §  2. 

in  taking  application,  4  §  6 ;  9  §  29 ;  10  §  38,  40 ;  13  8  50,  51;  13  8  55 ; 

15  S  67  ;  17  §  77,  79;  21  §  103;  38  §  11;  72  §  13;  97  §33;  98 

^  :2(i ;  303  §  53. 
mistake  of,  in  writing  description,  85  §  2  ;  94  §  12. 
of  foreign  company,  liable  to  tax  to  iire  department,  127  §  1. 
of  foreign  company  liable  for  premium  to  assured,  17  §  78. 
of  foreign  company  subject  to  penalty,  394  ^  4. 
consent  to  assignment  waives  alienation,  30  g  38. 
issues  policy  when  forwarded  by  him  to  broker,  69 §  1. 
claim  to  salary,  18  §  83. 

liability  to  return  premium  to  assured  company  insolvent,  7  §  31. 
custom  of,  4^8. 

cannot  prevent  collection  of  premium  by  company,  4§  1. 
measure  of  damages  in  suit  against  company,  13  §  53. 
agency  question  of  fact,  10  §  39. 
completing  policy  after  loss,  7  §  33. 
liability  of,  for  premium  to  company,  7  §  31. 
oral  consent  to  transfer,  93  §  3. 

fraudulent  representations  as  afiiccting  defense  of  other  in3urance,94  §  8 . 
rule  (ji\  as  to  amount  of  insurance.  111  §  58. 

liable  to  broker,  amount  of  chack  left  conditionally  with  him,  16  §  72. 
insolvency  no  defense  breach  of  contract  with  agent,  13  §  53. 
of  mutual  company,  authority  to  consent  to  assignment,  195  §  74. 
ratification  by  assured  of  act  in  procuring  insurance,  20  §  98. 
assured  uiav  ratify  (after  fire)  action  of,  in  obtaining  policy,  4  §  7. 
waiverby,9§30;13S50;13§55;34S63;345§18;346§33;347§36; 
349  g  34,  38,  39,  and  see  knowledge  of,  supra, 
(Sec  BiioEGR ;  Ratification.) 

ALIENATION, 

consent  necessary,  28  §  37. 

execution  of  a  mortgage,  28  §29;  39  §35  ;  31  §43;  33§48,49;3:J 

§55,  57;  389  §1. 
chattel  mortgage,  32  §  53;  34  §  61. 
foreclosure  proceedings,  35  §  1 1 ;  36  §  17  ;  39  §  36 ;  30  §  40 ;  31  §  44 , 

45,  40;  33  §60. 
whether  consent  to  sale  includes  consent  to  mortgage,  30  §  39 ;  393 

§3. 
oral  consent  of  agent,  93  §  3. 
interest  of  one  partner  to  another,  37  §  18,  19,  21. 
transfer  of  interest  to  partners,  30  §  37 ;  46  §  18. 
by  partner  to  third  party,  34  §  63. 
entire  interest  must  be  sold,  23  §  3 ;  27  §  19 ;  29  §  33. 
waiver,  104  §  13. 
trust  deed  as  security,  33  §  54. 
void  sale  under  mortgage,  33  §  58. 
conveyance  by  assured  to  mortgiigce,  33  §  50. 
sheriff's  deed,  389  §3. 
quit  claim  deed  as  security,  33  §  50. 
void  conveyance  or  sale,  34  §  8 ;  3'i  §  51. 
not  affected  by  act  of  third  party,  33  §  52. 
docs  not  effect  transfer  of  policy,  44  §  4. 

stock  of  goods  kept  for  sale,  33  §  1.  ,        •  j 

effect  of  consent  making  loss  payable  to  party,  without  knowledge 

of  transfer,  23  §  3. 
conditional  sale,  28  §  26 


420 


INDEX. 


ALIENATION— wn<irtMC<Z 

void  under  statute  of  frauds,  27  §  23, 

sale  by  executrix,  24  §  0. 

conveyance  from  husband  to  wife,  27  §  24. 

sale  by  procc«dings  in  orpluins'  court,  24  §  7. 

contract  of  sale  and  part  payment,  24  §  10. 

sale  takinjif  mortgage  back  for  purchase  money,  23  §  5. 

assignment  in  bankruptcy,  2'>  §  13. 

effect  of  Side,  25  §  14. 

sale  and  re-conveyance,  23  §  4 ;  28  §  30. 

appointment  of  receiver  of  partnership,  29  §  34. 

etfect  ^lecd  of  trust,  29  §  35 ;  3H9  §  2. 

consent  to,  must  be  indorsed,  35  §  08. 

cffectf  not  altered  by  loss  payable  to  mortgp  ;ee,  25  §  13. 

executory  CwnuaO*-  of  sale,  29  §  31. 

waiver  by  consent   o  assignment,  30  §  38. 

levy  of  an  execution,  20  §  15,  17. 

purchase  money  mortgage  does  not  change  elTect,  20  §  10. 

appointment  of  a  new  assignee,  29  §  33. 

foreclosure  of  mechanic's  lien,  20  §  15. 

the  word   '  transfer"  sufficient  notice,  24  §  9, 

effect  of  death,  28  §28. 

death  of  executor  and  appointment  of  special  administrator,  30  §  41. 

sale  in  partition,  31  g  42. 

transfer  by  one  tenant  in  common  to  another,  34  §  03. 

transfer  by  husband  to  wife,  34  §  05. 

notice  filed  of  mechanic's  lien,  34  §  04. 

effected  by  deed  valid  between  parties,  35  §  66. 

assignment  intended  as  a  mortgage,  156  §  34. 

property  insured  by  mutual  company,  210  §  14n. 

by  mortgagor  after  assignment  of  mutual  policy  to  n;ortgagee,200  ^  97. 

sale  for  taxes,  .'Jl  §  47. 

witii  reconveyance  of  life  interest,  35  §  07. 

poli(7  providing  for  consent  of  company  not  bound  to  give  it,  27 
§20. 

effect  of,  in  mutual  companv,  191  §  51 ;  190  §  79. 
ALTERATION, 

of  property,  30  §  1,  2,  3. 

as  affecting  inircase  of  risk,  395  §  2. 

of  policy,  52  §  4. 
AMBIGUITY, 

in  description,  100  §  20. 

other  insurance,  350  §  14. 

warranty  and  representation,  355  j5  11 ;  303  §  81. 
(Sue  KviDiiNCH.) 
APPLICATION, 

agent  taking.  9  §  29;  10  55  38,  40;  11  §47;  12  8  50,  51;  13 
S55;  10^71;  "l7  §  77,  79;  21  §  103;  38  §  11  ;  72gl3;  97  §22; 
98  §  20;  112  §  05. 

effect  agency  clause  in  policy,  18  §  til ;  19  §  90. 
(Heo  AonNT.) 

part  of  poli(7  and  warranty,  39  §  10;  358  §  22,  23  ;  308  §  79  ;  390 
§  1:  411  ■§  1. 

assured  bonmi  hy,  12  §  49;  37  §  2;  38  §  9 ;  39      15. 

v/aivcr  hy  ununswerea  questions,  37  §  3,  0,  7  ;  38  §  8 ;  350  §  42 ;  408  §  3. 

effect  of  omission  to  inrpiire  as  to  budding  on  leased  ground,  39  §  14. 

in  writing  not  affected  by  statements  of  broker'.^  clerk,  21  §  101. 

written  by  company's  agent,  4  §  0;  413  §  7. 


INDEX. 


tor,  30  §41. 


;ee,200  5i97. 
>  give  it,  27 


50,    51;  13 
lil;  97  §23; 


8  §  7U ;  390 


42 ;  408  §  3. 
nd.  39§14. 
1  §101. 


WPLlCATlOS-rontinnal. 

proof  of  signature  presumption  of  knowledge,  38  §  12. 

siguin-j;-  blank  form  afterwards  filled  up  by  agent,  363  S  53. 

assured's  failure  to  read,  305  §  65.  ""      ' 

to  another  company  made  warranty,  3G5  §  64. 

no  inference  that  policy  is  issued  in  compliance  with,  290  §  1. 

effect  of  signing  l)y  assured,  189  §  39. 

if  part  of  policy,  must  be  proved  with  it,  110  §  87. 

intrusting  broker  with,  establishes  authority,  19  §  89. 

additions  to,  by  secretary,  37  §  1. 

not  aflectcd  by  note  below  signature,  37  §  4. 

must  be  authorized,  37  §  5. 

effect  of,  not  altered  by  writing  on  blank  of  another  company,  39  §  13, 

memorandum  annexed,  38  §  10. 

as  notice  of  incumbrance,  393  §  1. 
(See  Diagram  ;  Survey.) 
APPORTIONMENT  OF  LOSS.    (See  Contribution.) 
APPRAISAL.    (See  Arbitration  and  Appraisement.) 
ARBITRATION  AND  APPRAISEMENT, 

as  waiver  of  proofs,  20 1  §  05 ;  348  §  29. 

denial  of  liability  a  waiver,  42  §  11. 

company  must  offer  to  have  appraisers  appointed,  40  §  1. 

effect  of  appraisal  agreement  as  waiver,  410  §  4. 

award  binding  only  by  agreement,  40  §  2. 

stipulated  value  renders  arbitration  clause  inoperative,  41  §  8. 

bar  to'  recovery,  40  §  5. 

what  necessary  to  constitute  a  defense,  40  §  4. 

court  not  deprived  of  jurisdiction  unless  a  condition  precedent,  40 
§3. 

not  valid  made  in  absence  of  arbitrator,  42  §  12. 

company  must  make  request  during  tlie  00  days,  41  §  10  ;  42  §  14. 

effect  on  right  of  action,  41  §  7, 9  ;  43  §  16. 

construed  to  apply  only  to  personal  property,  42  §  15. 

no  application  case  of  total  loss,  40  §  6. 

no  application  where  dispute  is  whether  loss  partial  or  total,  42  §  15. 

award  binding,  42  §  13. 

failure  to  put  damaged  pro|)erty  in  order,  53  §  3. 
condition  not  operative  in  Canada  unless  statute  as  to  printing  com- 
plied witii,  54  §  15. 
local  agent  no  authority,  4  §  8. 

award  nullity  should  not  be  considered  by  jury,  209  §  10, 
mutual  companies,  207  §  134. 
ASSESSMENT,  effect  of,  with  knowledge  of  forfeiture,  183  §  1. 
(See  Mutual  Companies.) 

ASSIGNMENT, 

as  collateral  security,  44  §  5 ;  47  §  27. 

assignee  takes  policy  subject  to  conditions,  43  §  2;  44  §  7. 
C'  consent  of  company  necessary  to,  47  §  23,  24. 

loss  payable  to  third  party  is  not  an  assignment,  45  §  13. 

invalid,  cannot  defeat  insurance,  43  §  1. 
^  in  Iowa,  valid  tliougii  prohibited  by  condition,  43  §  3. 
^   sale  of  property  does  not  operate  as,  44  §  4. 

interest  in  property  necessary  to  sustain  alter  loss,  47  §  25, 

company  liable  to  assignee  if  it  pays  after  notice  of,  44  §  6. 
^  interest  of  one  partner  to  another  not  of  the  policy,  40  §  18. 

not  effected  by  arrangement  between  assured  and  payee,  46  §  17. 


n\\ 


V, 


ll 


i 


422 


INDEX. 


ASSIGNMENT— w/<<mMe«Z. 

effect  of  application  for  renewal  by  assignee,  46  §  IG. 

by  mortpagee,  45  §  15. 

policy  covers  property  same  class  belonging  to  assigni'c,  45  §  14. 

insuriible  interest  necessary  to  sustain,  46  §  22. 

when  it  becomes  operative,  46  §  21. 
i^ condition  prohibiting  valid,  46  §  20. 

after  partial  loss,  46  §  19. 

under  New  York  code  an  equitable,  is  in  effect  a  legal,  47  §  28. 
*-   may  be  by  parol  and  delivery,  47  §  28. 

of  claim  against  one  company  to  another,  278  §  3. 

of  mutual  policy,  195  §  74;  200  §  97. 

after  a  loss  is  not  of  the  policy  but  of  (he  claim,  47  §  26. 

cf  personal  property  does  not  transfer  policy,  45  §  12. 

obtained  by  fraud,  void,  44  §  8. 

effect  of  entry  in  policy  register,  44  g  9. 

after  fire,  44  §10;  45  §  11. 

authority  of  agent,  8  §  25. 
ATTACHMENT, 

effect  if  illegal,  119  §  5. 

effect  of,  on  limitation  clause,  167  §  3. 

(See  Garnishment  or  Trustee  Process.) 
AUCTIONEER,  goods  in  hands  of,  as  affecting  title,  309  §  18. 
AVERAGE  CLAUSE, 

effect  of,  114  §78. 

specific  insurance  and  contribution,  74  §  4. 

BENZINE, 

not  covered  by  word  materials,  380  §  12." 
storing  or  keeping,  300  §  30;  301  §  21,  23. 
material  risk,  64  §  2. 

(See  Storing  and  Keeping.) 
BONDS  OF  AGENTS, 

effect  of  death,  48  §  1. 
place  of  making  contract,  48  §  4. 
giving  of  note  in  settlement,  48  §  5. 
book  of  agent  as  evidence,  48  §  2. 

agents  may  require  production  of  contracts  between  company  and 
other  companies  who  are  parties  to  the  bonds,  48  §  3. 

BOOKS  OP  ACCOUNT  AND  VOUCHERS, 

burden  of  proof,  50  §  2. 

destruction  by  fire,  49  §  1. 

in  case  of  loss  affidavit  of  value  sufficient,  49  §  3. 

ability  to  furnish,  question  for  jury,  50  §  5. 

ability  of  assured  to  furnish,  113  §  77. 

must  furnish  copies  if  not  original!-^,  4'J  §  2. 

must  comply  with  condition,  50  §  6. 

non-production  not  construed  as  a  refusal  to  produce,  49  §  4. 
BROKER, 

agent  of  assured,  15  §  69;  20  g  94. 

may  be  agent  of  company,  4  §  2;  5  §  9;  0  §  17;  14  §  09;  10  §  73; 
19  ^  9'' 

authority  of,  11  §  45;  19  §  89;  20  §  90. 

authority  to  cancel,  6  §  14 ;  7  §  20;  10  §41 ;  H  §  45. 

authority  reference  to  renewal  and  premium,  7  §  22. 

ratification  of  net  in  procuring  iniurance,  4  §  7 ;  19  §  80. 


INDEX. 


423 


45  §  14. 


17  §  28. 


oinpany  ami 
3. 


I 


9  §4. 

59;  10  §73; 


BROKER— continued. 

payment  of  premium,  6  §  17 ;  246  §  4, 6 ;  347  ^  9  :  218  §  15 ;  311  §  10 

company  not  bound  by  knowledge  of,  19  §  88,  89 ;  20  §  97 

knowledge  of,  as  an  estoppel,  94  §  9. 

notice  to,  of  cancellation,  36  §  12;  57  §  16, 17. 

notice  to,  of  other  insurance,  217  §  1. 

opinion  of,  as  to  representation,  306  §  70. 

effect  of  plan  furnished  by  and  referred  to,  f!72  §  97. 

acceptance  note  of,  account  of  premium,  249  §  iV. 

statements  of  clerk.  21  §  101. 

custom  among,  108  §  38. 

books  as  evidence,  107  §  32. 

may  recover  amount  of  check  left  conditionally  with  agent,  10  §  72. 

conversation  with,  as  evidence  of  agency,  16  §  74. 

obtaining  of  insurance  by,  from  company  not  authorized  to  transact 

business,  127  §  4, 
mistake  in  ordering  or  consenting  to  cancellation,  54  §  2. 
liability  to  penalty,  in  obtaining  policies  of  foreign  company  not 

admitted  to  State,  136  §  52;  394  §4. 
assured  bound  by  misstatement  in  apjilication,  12  §  49. 
(See  Agent.) 

BUILDING,  , 

cash  '.dlue  of,  82  §  8. 

vvUen  not  totally  destroyed,  G8  §  15. 

erection  of,  as  increase  of  risk,  396  §  4. 

(See  Application  ;  Diagkam  ;  Distance  between  BuiiiDings.  i 
BURDEN  OF  PROOF, 

on  company  to  show  exemption  from  liability,  50  §  3. 

books  of  account  and  vouchers,  50  §  2. 

incumbrance,  89  §  17. 

insurable  interest,  50  §  1. 

increase  of  risk,  329  §  6. 

use  of  kerosene,  300  §  18. 
BURNING  BY  DESIGN, 

evidence  necessary  to  sustain,  51  §  3. 

validity  of  policy  not  an  essential  element,  trial  of  indictment,  51  §  2. 

by  wife  of  assured,  51  §  4. 

evidence  of  amount  offered  as  rent,  51  §  1. 
BY-LAWS  AND  (CONDITIONS, 

assured  bound  by  acceptance  of  policy,  52  §  7;  103  §  8. 

assured  bound  to  take  notice  of  the  terms  of  the  policy,  52  §  2,  5. 

no  part  of  the  consideration,  54  §  16. 

fraud  voids  insurance  without  express  provision,  53  §  12. 

in  Canada,  must  be  printed  in  policy,  53  §  13. 

as  affected  by  size  of  type,  53  §  11 ;  54  §  14  ;  393  §  3. 

in  Canada  if  not  in  print  on  policy,  insurance  treated  without  any 
conditions,  53  §  13;  54  §  15. 

policy  voidable  only  at  option  of  company,  53  §  1,  6;  400  §  4. 

cannot  be  modified  by  resolution  of  directors,  53  §  9. 

in  Canada  made  to  depend  upon  opinion  of  court,  53  §  10. 

alteration  of  policy,  52  §4. 
-     '  when  operative,  345  §  16. 

operative  from  time  of  renewal,  288  §  14. 

conditions  of  policy  operative,  assured  holding  certificate  of  iusur- 
rance,  226  §  45. 


lii 


424 


INDEX. 


CALIFORNIA,  power  of  iusmance  commissioner,  128  §  5. 
CANADA, 

parol  conlrnct  subject  to  statutoiy  eonditions,  230  §  00. 

conditions  must  be  printed  in  poliey.  !])]  §  l;j. 

conditions  made  to  depend  npon  opinion  of  court.  fJS  §  10. 

cfl'ect  and  construction  of  statute  prescril)ing  conditions  of  insur- 
ance, ;}i)4  ?'l,  2;  4o;j  §  i. 

effect  of  alienation  under  statute,  !]9S  ?  1. 

effect  of  statute  on  payment  of  i)r(Mniuni,  403  §  1. 

waiver  jirool's  under  statute,  401  jJ  0. 

effect  statute  on  indorsement  and  renewal,  412  ^  2. 
CANCELLATION, 

wiiat  necessary  to  effect,  55  §  C  ;  57  §  21 ;  58  §  33;  5«J  §  24  ;  JjOO  §  1. 

obligation  to  cancel  on  receipt  of  notice,  58  ?  22. 

company  bound  to  cancel  on  acquiring  knowledge,  increase  of  risk, 
143  §  5;  144  §  7,  9;  145  §  15  ;  14i'i  §  18. 

company  bound  to  cancel  on  aetjuiring  knowledge  of  vacant  or  un- 
occupied, 338  §  37. 

nutlioritvon)rokeroragent,0i;14;  7  §  20  ;  10  §  41  ;  11  j  45  ;  390  §  2. 

notice  to  bioker,  56  g  12;  57  §  l(i.  17. 

authority  of  agent,  question  for  jury,  270  §  14. 

authority  of  agent  to  revive  canceled  policy,  15  §  08. 

effect  of  agency  clause,  10  if  42. 

mutual  policy,  191  §  52;  197  §  80;  199  §  91  ;  204  §  117;  210  §  143; 
212  §  157. 

premium  note,  200  §  121. 

credit  having  been  given  by  local  agent  to  broker,  249  §  IS. 

mortgagee  no  authority  to  consent  to,  177  §  20,  21!. 

of  mutual  policy  by  mailing  notice,  190  ^  42. 

payment  return  premium,  (juestion  for  jui-y,  59  §  24. 

correct  return  premium  nuist  l)e  tendered  or  paiil  to  assured,  who 
must  be  sought  for  purpose,  54  §  4. 

cannot  be  effected  by  company  when  danger  is  imminent,  54  §  3. 

not  effectual  when  consented  to  by  mistake,  54  §  2. 

clause,  giving  company  option,  valid,  54  ^  1. 

retention  of  policy  by  company,  55  §  9. 

not  effected  without  consent  or  authority  of  assured,  55  §  8. 

taking  policy  back  after,  55  §  7. 

entry  by  company  on  book,  without   knowledge  or  consent  of  as- 
sured, not  admissible,  55  §  5. 

party  to  whom  loss  is  payable,  cannot  consent  to,  56  j  13. 

without  notice  to  assured,  50  §  11. 

action  sustainable  to  reinstate  policy,  57  §  20. 

entirely  optional  with  company,  50  §  10. 

notice  effectual,  premium  not  being  paid,  57  §  19. 

evidence  of  custom.  57  §  17,  13. 

not  effected  when  mietake,  50  §  14. 

assured  entitled  to  return   premium  only  on  surrender  of  policy, 
25  §  14. 

notice  to  party  to  w  liom  loss  is  made  payable,  57  §  15. 

notice  to  the  assured,  71  §  10. 
CERTIFICATE  OP  INSURANCE,  subject  to  terms  and  conditions  of  poli- 
cy, 23')  §45. 
CERTIFICATE  OF  LOSS, 

condition  i)recc<lcnt,  01  ?  0,  7;  63  §  11,  13,  15;  390  §  1. 

essentials  of,  59  §  2 ;  00  §  4. 

disqualification  of  magistrate,  59  §  1 ;  01  §  8;  03  §  19. 


INDEX. 


425 


0. 

IH  of  iiisur- 


§  10. 


4  ;  JjOO  §  1 . 
iisc  of  ii»ik, 
cant  or  uii- 

i5  ;  390  §  3. 

210  §  14;j; 

iured,  wlio 
54  §  []. 


iCDt  of  as- 


of  policj-, 


13  (if  poli- 


CEKTIFICATE  OF  LOSS— con  I  imiaJ. 

magistrate  concerned  in  tlie  los.;,  00  §  3. 

neaiesb  magistrate,  03  sj  13;  31)0  §  1.  • 

coronc*'  a  magistrate,  59  t;  2. 

time  when  must  be  lurnislKHl,  01  i}  10;  03  t- 18. 

if  magistrate  intercsletl  must  be  ailcgea  by' company,  62 

signature  of  magistrote  iiri'sumed  to  be  gi'nuine,  01  !^  5, 

delay,  wlicn  not  unrjasonaljle,  01  t-  i). 

evidence  of  aecojitanee,  03  §  17;  31(0  s^  1. 

not  <;vid"nce  of  value,  10r>  {^  21. 

foreign  company  cannot  insist  upon,  in  Indiana,  129  S  U. 

waiver,  03  §  14;  343  ^5  3;  410  i<  3. 

CLIiKK,  of  agent  binds  company,  5  §  10. 
C'OIjLISION,  liability  for  loss  occasioned  bv,  63  ?  1,  3. 
CONCE.XLMENT, 

knowledge  of  agent,  05  §  7. 

benzine,  04  §  2. 

of  application  for  insurance  to  another  agent,  04  §  4. 

of  litigation,  04  §  5. 

mortgage,  04  §  3, 

assignee's  interest,  39  §  33. 

cannot  be  by  unanswered  question  in  application,  37  §  0. 

incumbrance,  05  §  10;  87  §  3. 

right  of  dower,  'i5  §  9. 

possession  of  property,  05  §  8. 

danger  of  incendiary  lire,  05  §  13. 

title,  65  g  6. 

in  diagram,  05  §  11 ;  3!»1  §  1. 

fraudulent,  98  §  34. 

fraudulent  omission,  question  for  jury,  05  §  9, 

question  for  jurv,  G4  §  1. 
CONDITIONAL  SALE,' as  alienation,  28  §  26. 
CONDITIONS.    (See  By-Laws  and  Conditions;  Constkcction.) 
CONSENT  must  be  indorsed,  85  §  18. 

(See  Agent;  EsxoppEii;  Waiver.) 
CONSTITUTION,  U.  S.  policy  not  an  instrument  of  commerce,  85  §  4. 
CONSTRUCTION, 

contract  shoidd  be  enforced  uccor  ling  to  true  sinrit  and  intent,  07 
§6;  08  §10,  11,  14;  391^1,3. 

warranty  not  extended  by,  361  §  43;  363  §  54. 

as  a  question  for  court  or  jury,  208  §  3,  5,  7. 

ambiguity,  knowledge  of  facts  by  company,  CO  §  1. 

of  writing  must  be  by  court,  370  §  10. 

total  loss  not  absolute  extinction,  08  §  15. 

word  need  not  be  taken  in  sense  understood  by  company,  08  §  13. 

forfeitures  not  encouraged,  68  §  13. 

error  i    writing  word  determined  by  court,  67  §  8. 

rights  fixed  at  time  of  loss,  60  §  5 ;  401  §  1. 

strict  against  company,  06  §  3,  4. 

parol  proof  inadmissible,  60  §  3. 

wlien  language  has  settled  legal  construction,  parol  evidence  not  ad- 
mi?sible'to  vary,  06  §  3 ;  103  §  7. 

conditions  divided  into  two  classes,  67  §  9. 

machinery,  4  §  6. 

tavern  and  hotel,  86  §  4. 

BtandJug  detached,  87  §  1. 

legal  process,  393  §  3.  ;  ' 


il 

i\ 

k'   1! 

V  I   ■. 

A.   J 

^1    .: 


42G 


INDEX. 


(CONSTRUCTION— ro/!<inM6(/. 

increase  of  risk,  395  §1,2.  • 

"  kept  or  used."  406  §  1. 

(See  By-Laws  and  Conditioss.) 
CONSUMMATION  OP  CONTRACT, 

what  suflicient,  72  §  12. 

effect  of  usugc,  73  I  14. 

conditional  on  termination  of  other  insurnncc,  71  §  10. 

acceptance  l)y  agent,  71  §  9. 

what  is  eufficicnt  delivery,  71  §  8. 

agent  to  take  applications  cannot  bind,  73  §  13. 

prepayment  of  premium,  70  §  7. 

if  no  waiver  of  prepayment  premium  policy  cannot  be  uccepted,  and 
premium  tendered  after  fire,  70  §  7. 

commences  day  of  its  date,  G9  §  3. 

acceptance  of  policy  by  agent,  70  §  H. 

property  burned  when  policy  delivered,  70  §  0;  73  §  11. 

property  burned  when  insurance  applied  for,  69  §  4. 

property  destroyed  before  issue  of  policy,  69  §  2. 

policy  issued  when  forwarded  by  agent  to  broker,  C9  §  1. 
CONTRACT, 

entire,  although  covering  different  items,  91  §  1,  2,  8,  4,  5;  93  §  U, 
8,10. 

(See  By-laws  and  Conditions  ;  Constbuction.  ) 
CONTRIBUTION, 

no  application  when  Joss  exceeds  insurance,  74  §  3,  3. 

policies  held  by  factor  and  obtained  by  owner  in  his  name,  75  §  5. 

obtained  by  wharfinger,  and  another  obtained  by  the  owner,  79  §  IC. 

joint  policy  of  four  companies,  75  §  8. 

general  and  special  policies,  75  §  6,  7;  77  §  12. 

liability  not  limited  by  amount  received  from  another  company, 
78  §  13. 

other  insurance  must  be  upon  the  same  interest,  78  §  14;  79  §  15. 

liability,  when  attaches  and  terminates,  70  §  10. 

assured  not  bound  to  continue  other  insurance,  and  if  none  in  force 
no  apportionment,  76  §  9. 

other  insurance  procured  by  vendor  assured  in  possession,  393  §  1. 

assured  may  assent  to  claim  of  invalidity  of  one  policy  mid  throw 
burden  of  loss  on  another,  76  §  9. 

mortgagor  and  mortgagee,  187  §  42. 

effect  of  mortgagee  clause,  79  §  17;  179  §  30;  181  §  42. 

other  insurance  procured  by  mortgagee,  400  ^  5. 

effect  of  company  joining  in  adjustment,  79  §  19. 

liability  limited  by  a  two-thirds  clause,  74  §  1. 

average  clause  and  specific  insurance,  74  §  4. 

assured  not  bound  to  keep  other  insurance  in  force,  79  §  18. 

examples  of  apportionment  as  made  by  the  court,  76  §  11 ;  77  §  12. 

enforced,  80  §  20. 
CONVEYANCE.     (See  Alienation  ;  Title.) 
COUNTERSIGNING, 

by  agent,  7  §  19. 

by  partner  of  agent  in  firm  name,  6  §  15. 
COVENANT  TO  INSURE, 

liability  of,  under  agreement,  81  §  1. 

by  building  association,  81  §  1. 

(See  MoHxaAGOR  and  Mortgagee.) 
CUSTOM,  of  agent.  4  §  3. 

(See  Evidence.) 


INDEX. 


427 


;c('i)tetl,  and 


4.5;  93  §G, 

.) 


le,  75  §  5. 
ner,  79  §  IC. 


V  company, 

79  §  15. 

ne  in  force 

,  392  §  1. 
and  tlirow 


18. 
:;  77  §12. 


DAMAGES, 

action  brought  by  mortgagee,  175  §  11;  17C  g  19. 
as  affected  by  payment  to  mortgagee,  385  §  0. 
interest,  when  begins  to  run,  82  §  7;  83  §  14,  10;  84  S  18.  20-  109 
§46;  173  §4.  '       s     .    v,  iu» 

competency  of  witness  as  to  vahie,  107  §  36;  109  §  IP. 

rental  value  admissible  in  evidence,  83  ^  12. 

itemized  valuation  preferred  to  gross,  82  §  10. 

cash  value  of  building,  32  §  8. 

market  value,  82  §  9. 

opinion  as  to  value,  103  §  9. 

valuation  by  agent,  110  §52. 

value,  110  §  55. 

sum  insured  extent  of  liability,  82  §  0. 

when  loss  limited  to  two-thirds,  no  interest  on  excess,  82  §  4. 

building  total  loss,  84  §  21. 

limited  by  interest,  83  §  15. 

cost  of  restoration,  83  §  13. 

evidence  of  what  was  paid  for  farm  within  two  miles,  105  §  20. 

evidence  of  what  lands  sold  for  after  buildings  were  destroyed. 
109  §  48. 

life  interest,  158  §  48. 

interest  of  lessee,  152  §  11. 

under  covenant  to  insure,  81  §  1. 

caused  by  company's  neglect  to  repair,  272,  §  6. 

on  failure  to  rebuild,  271  §  4. 

suit  on  parol  contract,  235  §  27. 

goods  stored  in  bonded  warehouse,  81  §  3. 

caused  by  explosion,  120  §  5. 

total  demand  recoverable  by  one  to  whom  loss  is  payable,  161  §  9. 

liability  as  affected  by  amount  paid  by  another  company.  111  §  60. 

jury  may  find  sum  between  two  amounts  sworn  to,  81  §  1. 

set-oft' claim  for  insurance  and  money  loaned,  82  §  5. 

liability  of  company  not  affected  by  violation  of  a  public  assessment 
commission,  83  §  11. 

valued  policy  renders  evidence  of  value  immaterial,  83  §  17. 

in  action  by  contractor,  right  to,  not  affected  by  failure  to  proceed 
under  mechanics'  lien,  84  §  19. 

on  property  specifically  insured,  84  §  22. 

amount  paid  by  company  to  assured  not  available  in  mitigation  in 
suit  against  negligent  party,  81  §  2. 

company  entitled  to  credit  for' amount  received  as  damages  by  as- 
sured from  wrongdoer,  303  §  7. 
vessel  having  been  submerged,  293  §  14. 
value  of  privilege  of  redemption,  164  §  24. 
interest  upon  claims,  member  of  mutual  company,  195  §  70. 
when  assured  has  claim  for  rent,  company  having  exercised  option 
to  rebuild,  273  §  8. 
DEATH  OP  ASSURED,  eff'ect  of,  38  §  28. 

DEED  OP  TRUST, 

as  affecting  tille,  310  §22. 
as  alienation,  389  §  3. 
DEED.    <See  Alie-Nation  ;  Title.) 

DEFINITIONS, 

contiguous,  85  §  3. 

gross  negligence,  85  §  1. 

no  distinction  between  a  tavern  and  a  hotel,  86  §  4. 


428 


INDEX. 


DEFINITIONS— co»///H/er7. 

policv  contract  of  iudemnity  not  instrument  of  comiULTCc,  85  §  3,  4; 
394  §  1. 

(Sec  By-Laws  and  Coni>ition8  ;  Construction.) 
DESCRIPTION, 

error  in  name  immaterial  if  identity  established,  86  §  U. 

three  stciry  huildini;  a])i)lics  to  front  only,  86  §  5,  6. 

when  niistiiko  in,  atlVctH  validity  of  contract,  86  §  7. 

atdumed  to  be  same  as  in  application,  108  §  43. 

latent  ambijiiiiiy  is  removable,  106  §  20. 

assured  bound  by  acceptance  of  policy,  85  §  1. 

mistake  of  agent,  85  i?  2;  1)4  §  13. 

mistake  in,  prevented  from  being  corrected  by  company,  05  §  15. 

knowledge  of  comjjany  admissible  as  enabling  court  to  apply,  103  §  2. 
(See  AprLicATioN.) 
DEVIATION,  1)y  boat,  361  §  43. 
DIAGRAM, 

concealment.  65  §  11 ;  301  ,^  1. 

Aviien  assured  bound  bv,  3.i8  §  79. 

warranty  by,  411  §  1 ;  412  §  5;  413  ?  7,  8. 

(See  Suiivky;  Waukanty  and  Repkksentation.) 
DISTANCE  BETWEEN  BUILDINGS, 

warranty  and  representation,  358  §  26;  375  §  100;  412  §  5;  413  §  8. 

standing  detached  not  limited  by  custom,  87  §  1. 
(Sec  DiAOKASi.) 
DOWER,  as  affecting  title,  314  §  40  ;  316  §  52. 


\m> 


ENCUMBRANCE, 

must  be  valid,  80  §  17. 

must  be  created  by  act  of  assured,  89  §  16,  18;  90  §  19. 

materiality  of,  88  §  8. 

materiality  question  for  jury,  87  §  1. 

effect  of  knowledge  of  agent,  100  §  37. 

renewal  with  knowledge  of,   111  §  57. 

goods  in  auctioneer's  hands,  309  §  18. 

balance  due  on  purchase  at  orphans'  court  sale,  312  §  37. 

iudgment,  87  §  2  ;  88  §  12;  327  §  20. 

mortgage,  34  '-i  01 ;  87  «;  3 ;  88  §  6,  10,  1 1 ;  89  ?  14 ;  224  §  43 ;  393  §  3. 

misrepresentation  of,  '.10^21;  368§S1;  370^86;  371  §8!);  373§04; 

373  §  99,  101, 102  ;  374  §  104 ;  408  §  2. 
defense  of,  available  under  general  issue,  244  §  37. 
issue  of  policy  without  a|)plication,  310  iJSl. 
notice  of,  in  applic;ition,  393  ■!  1, 
piiyment  not  presumed,  80  Jt  15. 
condition  reasonable,  87  §  4. 

validity  of  a  mortgage  may  be  tried  in  a  suit  for  insurance,  87  s  5. 
must  not  exceeii  permitted  amount,  80  §  13. 
sending  mcmev,  after  loss,  to  mortgagee,  is   equivalent  to  written 

consent  to,  88  §  7. 
vendor's  lien,  88  JJ  9. 

mortgage  p;iid  but  not  safistied  of  record,  90  §20. 
chattel  mortgage,  90  i?  20. 

assessment  and  seizure  under  revenue  laws,  393  §  3. 
(Sec  MouTdAoio.) 
ENDORSEMENT, 

(■onsent  to  alienation,  35  §  68. 
when  warranty  in  Canada,  413  §3. 

(See  Aoknt;  Estoitkl  ;  Waivku.) 


INDEX. 


429 


(^.85  §3,  4; 
.) 


95  §  15. 
ply,  103  §2. 


5;  413  §8. 


3;  393  §3. 

;  373  §04; 


to  written 


ENTIRETY  ANP  DIVISIBILITY  OP  POLICY, 

contract  entire,  brejicl'.  a3  to  part  avoids  the  whole.  91  U  3  3  4   -.- 
92  §0,10;  143  §3.  -     ■  s    -    ,    ,    .  j, 

if  property  covers  several  items,  contract  is  divisil)U!.  and  assured 
can  recover  upon  all  items  not  affected  by  broach,  92  §  7,  8,  9. 
other  insurance,  ?33§2!i. 
breach  of  warranty  as  to  one  item,  ;JTO  8  So. 
ESTOPPEL, 

authority  of  agent,  93  §1. 

authority  of  agent  to  write  risk  out  of  territory,  21  §102. 
fraud  or  mistake  of  agent,  94  1 8 ;  40.1  §  3. 

knowledge  of  agent,  18  §84;  20  §99;  34  §02;  94  §12;  9r,  Sl4;  97 
§  21,  23 ;  98  §  24,  25  ;  99  §  27,  38,  30  ;  100  §  35,  37  ;  301  §22;  323 
§  4  ;  32G  §  12 ;  327  §  18  ;  334  §  23  ;  344  §  15  ;  393  §1,2. 
agent  taking  application,  17  ^77;  38  §  11;  97  *  22;  93  §  2(i-  99 

§  31 ;  lUO  §  3(). 
knowledge  of  broker,  94  §  9. 

renewal  witli  knowledge  of  forfeiture,  93  §5;  287  §7, 9. 
knowledge  not  equivalent  to  permission,  94  J  11. 
knowledge  of  agent,  when  fraud  and  collusion   between  him  and 

assured,  94  §  7. 
not  created  by  mere  knowledge  of  eoniininy,  9(i  §  17. 


other  insurance,  219  §  13, 13  , 


§31; 


■45;  238  j  41;  ?   iglS. 


payment  of  premium,  210  §  2,  5. 

by  statement  of  agent,  reference  to  description,  100  §34. 

by  promise  of  agent  to  procure  consent,  100  15  33. 

by  taiiure  of  agent  to  insert  interest  in  policy,  90  §  18. 

by  statement  that  written  consent  is  unnecessary,  97  j  20. 

oral  consent  of  agent  to  transfer,  93  §  3. 

oral  consent  to  vacancy,  95  §  10. 

not  effected  by  notice  to  agent  of  an  intended  vacancy,  90  ;^  17. 

claimed  upon  a  written  instrument,  94  §  10. 

as  to  provision  of  written  ron.si'nt,  95  §  13. 

by  statement  in  examination  under  oath.  93  g  4. 

none  by  statement  in  proofs  of  other  insurance,  93  §  3. 

induced  to  delay  proofs,  li7  §  19. 

correction  of  mistake  prevented  by  company,  95  §  15. 

etVect  of  representations  to  sheriff  holding  execution,  99  §  29. 

by  adjustment  and  payment  of  loss,  93  §  (5. 

by  joining  in  an  adjustment,  99  §  ;i2. 

by  mutual  company  in  acknowledging  receipt  of  premium,  207  §  129. 

defense  founded  on  non-payment  of  premium  note,  202  §  107. 

negotiations  for  compromise  mutual  company,  200  §  94. 

by  acceptance  of  policy,  231  §  7. 

V)y  retention  of  policy  as  to  cancellation,  55  §  9. 

company  by  delivery  of  policy  to  broker  as  to  payment  of  premium 
to  latter,  10  §  73. 
(See  Wmveh.) 
EVIDENCE, 

agent's  daily  report,  114  §  80. 

whether  agent  would  have  issued  policy  if  facts  were  known,  10  2  §  1. 

custom  of' agent  as  to  amount  of  insurance,  111  §  58. 

knowledge  of  agent,  113  s  75. 

authoritv  of  agent,  389  S  1- 

limitation  authority  of  agent,  18  §  SO. 

book  of  agent,  48  §  2. 

authority  of  agent  to  make  parol  contract,  230  §  5. 

uiemoraudura  made  by  ugent  in  his  book,  287  §  11. 


11 


•I 


430 


INDEX. 


:U 


EVIDENCE— con/wiMfirf. 

ratification,  acts  of  Bub-agcnt,  8  §  27. 

knowle(l£ce  of  company  as  enabling  court  to  apply  description,  t02  §  2. 

knowledge  of  agent  as  to  value,  106  §  23. 

knowledge  of  incumbrance.  111  §  57. 

presumption  as  to  knowledge  of  company,  380  §  13. 

of  motive  on  issue  of  willful  burning,  51§1;  115SWI 

of  application,  not  admissible  to  show  notice  '  .'''>•  ^'^^  §  ^• 

authority  of  broker,  19  §  89. 

custom  among  brokers,  108  §  38. 

entries  upon  broker's  books,  107  §  32. 

conversations  with  solicitor  or  broker,  114  §  82. 

of  knowledge  of  agent  in  taking  application,  112  §  65. 

of  agency,  conversations  with  broker,  16  §  74. 

course  of  business  as  affecting  liability  of  broker  for  premium, G  §  17. 

parol  contract,  233  §  18. 

renew^al  by  parol,  233  §  19. 

to  sustain  suit  on  parol  contract,  232  §  10, 12. 

conditions  of  policy  should  be  proved  in  action  on  p  irol  con  ract, 
231  §  6. 

of  written  description,  108  §  43. 

of  circumstances  attending  application  admissible,  98  §  26. 

application,  if  made  part  of  policy,  must  bo  proved  with  it,  116  §  87. 

parol,  admissible  to  reform,  112  §  68. 

to  warrant  reformation,  40.5  §  1. 

parol  proof  inadmissible  when  language  plain,  66  §  3. 

intent  to  cover  certain  interests  may  be  shown  by  parol  testimony, 
161  §11. 

rule  excluding  parol  applies  only  to  the  parties  to  written  instru- 
ment, 140  §  8. 

ambiguity,  106  §  2,6;  355  §  11;  356  §  14;  368  §  81. 

parol,  to  prevent  effect  of  breach  of  warranty,  371  §  93. 

parol,  inadmissible  to  alter  warranty,  374  §  107. 

parol  not  admissible  in  action  l)y  mortgagee  to  show  interest,  l80  §  37. 

parol  evidence  not  admissible  to  show  interest  when  party  specifi- 
cally named,  163  §  19. 

parol  not  admissible  to  prove  instrument  does  not  mean  what  it 
says.  103  §  7. 

parol  admissible  to  show  property  covered,  112  §  6!j. 

other  insurance,  113  §  73;  302  §  1. 

notice  of  other  insurance,  220  §  18, 

other  insurance  by  parol,  221  §  25. 

overvaluation,  401  §  1. 

title,  307  §5,  6;  309  4i  21. 

fraud  and  false  swearing,  305  §1,2. 

necessary  to  sustain  delonsc  of  willful  burning,  51  §  3. 

explosions,  121  §  7. 

kerosene  oil,  113  §71;  116  §89. 

declaration  of  assured  as  to  occupancy,  113  §  70,  72. 

of  entry  by  company  on  the  book  of  Civnccllation.  5.)  §  5. 
necessary  to  sustain  defense  of  cancellation,  390  §  1. 
payment  of  incumbrance  not  presumed,  89  §  15. 
article  used  for  lighting,  106  §  6. 

estoppel,  394  §  1. 

opinion  of  experts  as  to  line  of  business,  105  §  !6. 

of  insurance  exports,  146  §  20. 

insurable  interest  presumed  to  continue,  243  §  18. 


INDEX. 


431 


EVWEifiCE— continued. 

of  insurable  interest  sustains  averment  of  ownership,  108  §  39. 

opinion  as  to  increase  of  risk,  109  §  44. 

notice  increase  of  risk,  394  §  1. 

inflammable  qualities  of  liquids  must  be  proved,  103  §  6. 

effect  of  average  clause,  114  §  78. 

efforts  to  save  property,  112  §  6(5. 

certiticate,  not  as  to  value,  105  §  31. 

acceptance  of  certiticate,  62  §  17. 

ability  of  assured  to  furnish  duplicate  bills,  113  §  77. 

diligence  in  furnishing  proofs,  114  §  79. 

signature  of  magistrate  to  proofs  presumed  to  be  genuine,  01  J  o. 

receipt  of  proofs  of  loss  mailed,  264  §  70. 

waiver  prools  of  loss.  343  §  1. 

proofs  of  loss  as,  116  §  91 ;  257  §  31. 

of  experts  in  adjustment,  107  §  'k;  112  ?  67. 

acts  and  declarations  of  adjuster  or  agent,  3  §  8 ;  105  H9 ;  1 10  §  53. 

adjustment  no  evidence  of  value  as  to  third  parties,  3  §  7. 

of  adjustment  may  be  adopted  by  jury  as  to  amount,  103  §  3. 

necessary  to  sustain  action  on  adjustment,  3  §  9,  10. 

cash  value,  110  §  55. 

value,  113  §  74. 

valuation  of  another  company,  110  §  50. 

valuation  by  agent,  110  §  53. 

expert  as  to  value,  113  §'7(5;  114  §  81. 

competency  of  witness  as  to  value,  107  §  36;  109  §  49. 

opinion  as  to  value,  103  §  9. 

of  value,  not  sufficient  if  vague  assertion  or  guess  work,- 103  §  5. 

of  cost  of  erection  of  building,  103  §  4. 

building  total  loss,  84  §  21. 

rental  value  of  building  upois  question  of  loss,  83  §  13. 

daughter  of  assured  upon  value,  105  §  18. 

of  what  was  paid  for  farm  within  two  miles  upon  issue  of  value, 
105  §  30. 

of  witness  in  same  trade  as  to  amount  of  stock,  104  §  10. 

for  what  lands  sold  for  after  building  was  destroyed,  109  §  48. 

ofltrs  of  compromise,  104  §  13;  107  §  33. 

not  necessary  to  prove  identity  of  goods  covered  by  warehouse  re- 
ceipt, 106  §  35. 

of  what  another  company  pays  in  mitigation  of  damages.  111  §  60. 

of  waiver,  109  §45;  340  §  35. 

of  waiver  in  other  cases,  104  §  13. 

of  officer  as  to  extent  and  limit  of  his  power  to  waive,  109  §  47. 

error  to  reject,  of  agency  when  waiver  relied  upon,  111  §  61. 

waiver  as  to  payment  of  premium,  5i>  §  11. 

service  of  notice  by  mail,  106  §  34;  108  §  41 ;  110  §  54,  56. 

usage  and  custom,  330  §  1,  3.  3,  4;  331  §  6,  7,  8;  333  §  9,  10. 

of  custom,  when  admissible,  110  §  88. 

general  ami  leading  question  as  to  compliance  with  conditions  iui- 
proper,  105  §  23. 

docliirations  of  company's  officers,  104  §  14. 

parol  of  another  policy  thiin  one  in  suit,  104  §  15. 
printed  blank  admisMble,  105  §  17;  108  §  43. 

competency  of  wife  of  assured,  104  §  11. 

companv  c.mnot  attack  validity  of  iuslrumcnt  relied  on  as  a  defense, 

110  §51. 
of  prior  and  subsequent  emission  of  spiirks  in  suit  against  railroad 
company,  109  §  46. 


432 


INDEX. 


EVIDENCE— continued. 

declarations  of  assured  not  admissible  against  payee  of  policy, 
108  §  40. 

of  experts,  meaning  of  certain  terms,  108  §  37. 

counsel  for  company  competent  witness,  107  §  30. 

error  in  admitting  not  cured  by  direction  to  disregard,  107  §  2!). 

failure  of  assured  to  call  clerk  as  witness,  107  §  31. 

letter  written  by  agent  on  cross-examination  for  the  purpose  of  con- 
tradiction, 107  §  35. 

not  sustaining  verdict,  being  contrary  to  laws  of  matter,  106  §  28. 

no  necessity  of  proof  of  interest  in  party  to  whom  loss  is  payabU', 
100  §  27. 

only  of  facts  as  existing  at  time  suit  is  brought  unless  supplemental 
plea,  111  §oi). 

deed  not  adraissil)le  without  proof  of  record,  delivery  or  possession, 
112  §03. 

reading  of  policy,  1 IG  §  90. 

of  usual  rates  of  premium  on  same  class  of  property,  114  §  83. 

identity  of  agent  investigating  loss,  115  §  85. 

of  insurance  expert  as  to  risk,  115  §  80. 

otters  of  purchase,  issue  of  overvaluation,  229  §  8. 

letter  of  company  construing  policy,  112  §  09. 

secondary,  of  cancelled  policies  sent  to  home  office  in  foreign  coun- 
try, 112  §  04. 

presumption  from  special  premium,  120  §  C. 

no  judicial  notice  of  existence  of  lire  department,  128  §  7. 

of  actuary  in  suit  against  company,  12  §  52. 

meml)ers  of  mutual  company  presumed  to  know  coiulitioiis,  189  §  3a. 

secondary,  of  notice  of  assessment,  183  §  3. 

declarations  of  owner  in  suit  brought  by  mortgagee,  178  §  27. 

i)rcsumption  as  to  knowledge  of  eliurter,  234  §  22. 

uncontradicted  letter  by  assured,  213  §  20. 

mitigation  of  damages,  suit  by  agent  against  company,  12  §  52. 
EXAMINATION  UNDEU  OATH, 

waives  condition  in  regard  to  notice,  117  §  4. 

no  part  of  ))roofs  of  loss,  117  §  1. 

demand  must  be  clear  and  distinct,  117  §  3. 

demand  upon  party  to  whom  loss  is  payable,  117  §  2. 

assured  bound  to  answer  only  suiih  ([uostions  as  are  material,  117 

§5- 

not  estopped  by  statement  in,  93  §  4. 

averments  necessary  to  sustain  defense,  241  §  0. 

docs  not  extend  time  for  payment  of  loss,  239  §  1. 
EXECUTION, 

levy  of,  20  §  15,  17. 

must  be  rightful  levie.-,  118  §  1. 

attachment,  119^5. 

insurable,  interest,  property  8ol<l  on,  151  §  22. 

sale  under  as  airoeting  title,  307  i?  7. 

meclianica'  lien,  118  §  2. 

technical  s"izure  not  sullieient,  118  §  3,  1. 
(See  AmI'INATIon;  Tm'MO.) 
EXPLOSION, 

of  gas,  1 20  <!  3. 

flour  dust,  122  ^  9. 

fallen  building,  121  §  8. 

no  ])resuinption  of  exception  from  special  premium,  120  §  0. 

use  of  gunpowiler  to  blow  up  burning  building,  119  §  1. 


c  of  policy, 

107  §  2!). 

rjjose  of  con- 

,  106  §  28. 
s  is  payable, 

upplementiil 

r  possession, 

§  Si!. 


Dreign  coiiis- 

7. 

•ns,  1«9  §  HH. 
§27. 


luteriiil,  1 17 


§«• 


INDBX.  433 

EXPLOSION— continued. 

fire  preceding,  122  §  10. 

fire  caused  by,  120  §  4;  121  §  7. 

damages  caused  by,  120  §  5. 

explosive  nature  of  article  question  for  jury,  300  §  17. 

of  engine,  incidental  and  esieutial  to  business,  119  §  3. 

FALLEN  BUILDING, 

l)y  explosion,  121  §  8. 
must  cease  to  be  such,  123  §  1,  2,  8. 
FOREIGN  COMPANY, 

not  admitted,  no  riohts  within  the  State,  123  §  9. 

must  comply  with  comlitions  imposed  by  statute,  129  §  13;  130  §  20 

policy  of,  not  admitted,  not  enforceable,  138  §  10. 

Btatiite  prohibiting  contracts  is  not  operative  in  other  States,  131 

statute  cannot  prevent  citizens  of  State  from  raakinsr  contracts  out 

of  the  State,  1:52  §  29;  1)53  §  34. 
may  make  valid  contract  enforceable  in  State  where  property  is  situ- 
ated, l:JO  §  18.  f    f     J 
in  transactions  of  its  business  in  other  States  is  not  eneao'cd  in  com- 
merce, 130  §19;  39 1§  1. 
revocation  of  authority,  133  §  27. 
effect  of  appeal  on  right  to  revoke  authority.  130  §  50. 
not  allowed  to  transuit.  business  after  proceedings  in  its  domicile  for 

dissolution,  133  §  38. 
premium  note  to  company  not  having  complied  with  statute.  135 

§49;  137^55. 
right  of,  to  collect  premium  note,  212  §  152;  213  §  158. 
not  having  cimipliel  with  statute,  elieet  on  picmiam  note,  202  5  104: 

204  §114. 
non-r;ompliance  with  statute  does  not  prevent  recovery  upon  note 

given  for  capital  stock,  133  §  3i). 
effect  upon  ivssessmont,  agent  not  having  complied  with  statute,  200 

^  93. 
jurisdiction  over,  129  §  15;  133  §  33;  131  §  42;  133  §  43;  138  §  53. 
Hervice  of  process  to  obtain  jurisdiction,  131  §  35. 
jurisdiction  in  garnishee  proceedings,  132  §  !i2. 
liability  of  agent  or  broker  to  penalty  in  obtaining  polloies  of,  not 

admitted  to  State,  130  §  62;  394  §  4. 
neglect  of  agent  to  forward  pvocjss  no  ground  to  vacate  judgment 

entered  by  default,  133  §  33,  37. 
liability  of  agent  to  pjy  license  in  St.  Paul,  Minnesota,  131  §  24. 
liability  of  agent  for  premium  to  assured,  17  §  73. 
obtaining  policy  through  broker,  127  §  4. 
liability  of  agent  for  tax  of  tirj  department,  137  §  1. 
in  action  against,  not  n^-ccssary  to  aver  compliaace  with  statute, 

128  i$0.' 
cannot  avail  iisclf  of  defense  founded  upon  non-complianco  with 

statute,  131  §  23;  1.'.7  §  53;  3i)t  i^  4. 
statute  prohibiMng  remi>val  of  suits  to  the  United  States  Court,  130 

S  3i;  13:  §  22. 
admitted  (o  State,  case  against,  canuot  be  removed  to  the  United 

States  ('(Uii't,  l:il  §2i>. 
taxatinn  of,  130  §  51. 

dilTor-nt  cla«  for  tixition  purposes,  135  g  48. 
deposit  not  liable  to  attanhineiit  i)y  foroi^a  creditors,  139  §  11, 
ri.jht  of  crediors  to  deposit,  129  §  13. 
Vol.  II.— 28 


434 


niDBX. 


FOREIGN  COMPANY-con^nttcrf. 

right  of  assin^nce  to  deposit,  130  §  17. 

costs  added  to  claims  in  diBpnsiii^  of  deposit,  127  §  8. 

deposit  security  only  for  policy  holders,  137  «J  3, 

iusurfince  dupurtment  cannot  voluntarily  transfer  trust  created  by 
deposit,  132  §  HO. 

power  to  tax  for  specific  purpose  of  fire  department  cannot  be  ex- 
tended, i:)3  §  28. 

rights  of  policy  Itolders  to  deposit,  184  §  44. 

right  to  collect  interest  on  deposit,  I'M  ^  51. 

when  department  required  to  give  up  deposit,  1B4  §  41. 

created  by  act  of  Congress,  a  foreign  corporation,  133  §  89. 

liability  to  tux  in  Georgia,  135  §  46,  47. 

when  may  file  certificate  of  authority  in  Indiana,  184  §  40. 

in  Iowa,  jurisdiction  obtained  by  service  upon  agent  authorized  to 
take  applications,  133  §  3ti,  37. 

liability  of,  to  tux  in  Memphis,  133  §  31. 

power  insurance  commissionci-,  California,  128  §  5. 

effect  of,  Canada  statute  prescribing  conditions  of  insurance,  894 
g  1.3. 

Ii:iblc  to  one  license  in  Louisiana,  138  §  8. 

cfiect  of  Mi8i:;outi  statute,  3£4  §  8. 

liabilily  of,  to  tax  in  the  city  of  Norfolk,  120  §  IC. 

liability  of,  to  tax  in  Chicago,  Illinois,  128  §  7. 

in  Indiana  cannot  insist  upon  a  certificate  of  nearest  magistrate,  129 
§14. 

PR.\UD, 

rescission  of  adjustment  for,  1  §  1. 

vitiates  adjustment,  3  (^  11. 

in  obtaining  insunincc  void.i  it  without  express  provision,  53  §  12. 

as  ground  of  reformation,  27(3  g  15. 

question  for  jury,  31U  ij  52. 

FRAUD  AND  FALSE  HWEAUING, 

essential  elements  of.  124  j^  3;  895  §1,3. 

none  il  company  knows  lacts,  125  S  0,  7. 

question  for  jury,  3ii!»  §  S. 

not  justified  by  statements  of  company's  agent,  135  §  5. 

including  goods  removed,  12.»  t^  5. 

inciuding  articles  not  covered  by  insurance,  120  §  10,  13. 

false  statement  of  ubsenee  from  tire,  lit  tj  1. 

cspontials  o',  in  relation  to  title,  12G  §  13. 

value,  125  ^4,^;  126  g  »,  11. 

evidence  of  witness  in  Kunie  trade  ns  to  amount  of  stock,  104  §  10. 

diirerenee  as  to  value  in  iipplieation  ami  proof's,  137  §  14. 

diflereneo  between  statement  in  proofs  and  appraiser's  estimate  ns  to 

value,  127  §  15. 
diirereneo  between  verdict  and  value  as  sworn  to  in  proofs  stud  on 

trial,  124  g  3. 


GARNISHMENT  OR  TRUSTEE  PRO0ES3, 

an  (inndjusted  claim  subject  to,  138  t^  1. 

pot  liable  si)  long  ai  co  npmy  h.»<  option  of  rdplaciog,  133  g  8. 

juriadiution  over  foreign  coinputics,  182  §  83. 

tisscismeiit  mutual  com^nnies,  313  ^  loU. 

Bervico  oi  process,  13t;  §  2. 


INDICX. 


435 


horized  to 


GASOLINE, 

lighting,  146  817;  100^3,4,  5. 

storing  or  keeping,  299  §  12. 

(8cc  Btouino  and  KiiiirTNo,)  i 

QEORGIA, 

verbal  consent  to  rfimoval,  2:53  §  13. 

estoppel,  pirol  contract,  2;53  g  13. 

statute  as  alluctins  warranty  and  repve-cntatAon,  884  §  80. 

under  code  jury  may  apportion  loi^  to  e:ich  company  issuins  ioint 
policy,  75  g  8.  "^    '  *' 

liability  of  foreign  company  to  tax,  135  §  46,  47. 
GOODS  IN  TRUST  OH  ON  COMMISSION, 

what  is  mcimt  by,  139  §  3. 

or  on  consignment,  what  included  by,  378  §  1. 

when  property  covered,  139  §  1. 

what  property  is  covered  by  policy,  383  §  24. 

party  to  whom  loss  is  piyable,  385  §  5,  7,  9. 

liability  of  assignee  for  negligence,  140  §  5. 

assured  trustee  for  actual  owners  as  to  excess  over  individual  claim, 
140  §  «. 

liability  of  assignee  to  the  assignor,  140  §  7. 

liability  of  bailee,  140  §  8. 

liability  of  warehouseman,  139  §  3. 

assured  cannot  insist  upni  m^ney  lirst  applied  to  tbs  satisfaction  of 
individual  claim,  141  §  9. 

whether  property  owned  was  held  in  trust,  question  for  jury,  141  §  10. 

who  may  sue,  385  §  5,  7,  9. 

trustee  does  not  guarantee  solvency  of  company,  139  §  4. 
(See  Intekkst  in  PoLicy.) 

GUNPOWDER, 

storing  or  keeping,  299  §  14. 
use  of,  to  blow  lip  burning  building,  119  §  1. 
(See  Stoking  and  Keepinq.) 


0 

II  ■:\ 

111 


m 


ILI..EGALITY  OF  CONTRACT, 

contract  made  on  Sunday,  143  §  1. 

liquors  kept  for  sale  contrary  to  law,  142  §  4. 

policy  covering  luture  material  in  course  of  business,  143  §  2. 

ii  relates  to  one  item  only,  voids  entire  insurance,  143  §  3. 

ILLINOIS, 

elFocts  of  dctault,  214  §  JS. 

li  il)ility  of  foiTiLi;!!  companies  to  tax  in  Chicago,  128  §  7. 
INCENDI  \RY  FIRE,  warranty  and  repres-ntation,  354  §3;  3«8  §78;412§0. 

(t<OC  BlIUNINU  BY  ')L.SU1N.) 

INCREASE  OF  IIISK, 

dofcnao  of,  does  not  depaud  upon  bjing  cause  of  fire,  145  §  10;  147 

§23;  148  §  27. 
cfTecl  of  clause  giving  company  option  to  cancel,  144  §  0. 
company  bound  lo  cancel  on  acquiring  knowledge  of.  143  §  5;  144 

§7;  115§  15;  140  §  18. 
testimony  i)f  inanrant  e  exp'jrts  not  conclusive,  1  iC  §  20. 
opinion  jia  evidence,  109  §  44. 
w  ritten  consent  n(ro.s-,ary,  3i)4  g  1. 
no  waiver  by  nnlice  to  agent,  410  |5  5. 
question  for  jury  144  §  (i.  8;  145  §  11,  12;  148  §  23;  269  §  13;  297 

i5  4;  316  g53;  338  §40;  895  §8. 
conatruclion,  305  ^  ^. 


I 


IKDEX. 


INCREASE  OP  "RISK— continued. 

as  nffected  by  permission  to  make  alterations  and  repairs,  895  §  9. 

vacant  or  unoccupied,  143  §   1,  3;  14(5  §  16;  147  8  35;  329  §0; 
333  g  15. 

questioii  of,  «8  affecting  use  and  occupation,  3'23  §  2 ;  824  §  6. 

erection  of  adjoining  building,  140  §  31 ;  3U0  §  4. 

building  of  an  oven,  11(5  §  18. 

cliange  of  occupants,  143  §  4. 

reducing  and  mixing  of  liquors,  145  §  14. 

by  removal  of  building,  145  §  11. 

signal  lights  and  fireworks,  144  g  8. 

two  stores  thrown  into  one,  143  §  3. 

lighting  with  gasoline,  146  §  17. 

insurance  on  vessels,  295  g  23. 

continuiition  of  existing  use  no  violation,  140  §  19;  824  §  5. 

assured  not  obliged  to  ascertain  facts  of,  143  §  5. 

has  reference  only  to  acts  of  assured,  145  §  13. 

clfcct  of  rate  of  premium,  147  §  23, 

negligence  does  not  amount  to,  147  §  23. 

by  consent  of  re-insured  company,  283  §  33. 

must  be  pleaded,  3C6  §  72. 

defense  not  affected  by  provision  tor  renewal,  148  §  86. 
(See  Risk.) 
INDIANA, 

piemium  note  married  woman,  207  §130. 

personal  liability  of  directors  of  mutual  company,  185     18. 

when  foreign  company  may  tile  certificiite  of  authority,  134  §  40. 

foreign  company  cannot  insist  upon  certificate  or  loss,  139  §  14. 
INSOLVENCY, 

directors  not  responsible  for  errors  of  judgment,  149  §  3. 

effect  on  insurance  contract,  279  §  8. 

effect  of,  on  re-insurance  contract,  278  §  5 ;  280  g  15. 

liability  on  stock  note  given  to  mutual  company,  307  §  133. 

setting  off  amount  due  from  insolvent  company,  194  §  CO. 

fraud  by  oflicer  and  stockholder  giving  mortgage  in  exchange  for 
stock,  149  §  1. 

compromise  of  premium  note  by  agent,  184  §  28. 

no  defense  to  notion  on  premium  note,  184  §  9;  185  §  IC;  199  §  93. 

no  defense  in  suit  against  broker  by  company  for  premiums,  6  §  17. 

no  defense  for  breacli  of  contract  with  agent,  12  §  53. 

INSURABLE  INTEREST, 

presumed  to  continue,  243  §  18. 

title  obtained  by  fraud,  308  §  13. 

effect  of  obtaining  insurance  under  an  assumed  name,  157  §  45. 

lending  money  does  not  confer,  150  §  36. 

if  wanting,  beyond  reach  of  a  waiver,  150  §  88. 

not  affected  by  equitable  title  in  third  parlies,  153  g  15. 

effect  of  recording,  150  §  1. 

company  estopped  from  setting  up  defense  of  want  of,  ICl  §  0. 

essential  elements  of,  153  §  16;  ir)4  §  26;  157  §  43. 

necessary  to  sustain  recovery,  157  §  44. 

must  be  pleaded,  243  g  22;  405  §  ;. 

averment  of,  in  Ohio,  241  §  5. 

burden  of  proof,  50  §  1. 

necessaiy  to  sustain  assignment,  40  §  23. 

proof  of,  sustains  avcrmunt  of  ownership,  108  §  39. 

party  in  possession  having  advanced  money,  150  §  37. 

of  wife,  155  §  29, 


INDEX. 


487 


INSURABLE  INTEREST— continued!. 

indoraers'  notes  secured  by  mortgage,  181  §  7, 

extent  of  owner  of  property,  158  §"47. 

by  mechanics'  lien,  158  §  46. 

life  interest.  158  §  48. 

an  assignment  intended  as  a  mortgage,  166  §  34. 

\7archousemen  as  baileus,  157  §  40. 

in  property  represented  by  warehouse  receipts  transferred  as  security, 

joint  owners,  157  §  41. 

of  a  gtnerul  agent,  155  §  87. 

lial)ility  for  tax  on  whiskey  stored,  165  §  80. 

administrator  with  will  annexed,  153  §  18. 

void  tax  sale,  154  §  21. 

property  sold  on  execution,  154  §  23. 

vessel  being  constructed,  35)7  §  2. 

as  affected  by  foreclosure  and  judgment,  104  §  23. 

policy  obtained  by  ptirt  owner,  154  §  24. 

party  prohibited  from  selling,  cannot  convey  any,  151  §  10. 

8tiite  in  possession.  152  §  12. 

as  aft'ected  by  forfeiture  under  terms  of  lease,  155  §  28. 

subject  to  lease,  155  §  33. 

lessor,  153  §  20. 

of  a  lessee,  152  §11. 

sub-lessee,  152  §  13. 

liability  as  common  carrier,  152  §  14. 

indorser  of  note  with  agreement  to  share  proceeds  of  sale  of  goods 

insured,  150  §  2. 
executrix  de  son  tort  or  widow,  150  §  3. 
deed  intended  as  a  mortgage  does  not  affect,  150  §  6. 
acquired    by   gift  from  husband  and    partially  erected  with  own 

earnings,  151  §  8. 
effect  of  executory  contract  of  sale,  156  §  35. 
party  in  possession  under  contract  of  purchase,  160  §4;  157  §89; 

158  §4i);  408  §  5. 
party  in  possession  with  written  declaration  of  debt  and  lien,  154 

§25. 
as  aflccted  by  acceptance  of  property  under  contract,  153  §  17. 
owner  retains,  though  in  possession  of  another  contract  for  purchase, 

151  §6. 
grantor  in  possession  with  agreement  for  life  estate,  153  S  19. 
as  affected  by  agreement  for  reconveyance,  155  §  31,  32;  157  §  43. 
(w«ec  Title.) 

INTEREST  IN  POLICY, 

name  of  assured  immaterial,  163  §  22. 

cannot  he  destroyed  by  act  of  party  bound  to  obtain  insurance  for 

benefit  of  owner,  1«2  §  12. 
effect  of  death  of  assured,  163  §  13. 
parol  evidence  not  aduiiusible  when  persons  specifically  named,  108 

8  19. 
property  destroyed  before  contract  of  sale  is  consummated,  165  §  27. 
effect  of  notifying  agent  of  change  of  interest  on  renewid,  1(54  §  25. 
creditor  not  bound  to  account  to  owner  for  insurance,  179  §  29. 
policy  as  collateral  security,  159  §  2. 

property  destroyed  during  pendency  of  partition  suit,  159  §8. 
intent  of  the  pnrties,  161  §  8. 
intent  may  be  shown  by  parol  testimony,  161  §  11. 
aa  between  landlord  and  tenant,  164  §  23. 


i 


■\:i\ 


438 


INDEX. 


INTEREST  IN  POLICY— continnerl. 
interest  of  lessee,  lt5i  §  24. 
landlord  acquires  none  by  lion,  1G2  §  It. 
as  between  credilois.  103  i}  15. 

liusliand  insurinjif  wife's  property  as  his  own,  IfiS  §  10. 
lis  between  vendee  and  judgment  creditor,  103  §  17. 
ellcct  of  niakinj^  losspayablu  to  third  paity,  159  g  1 ;  101  §  9;  103 

§  18. 
rights  o!' party  to  whom  loss  is  pnyablcaaaffectc;!  by  acts  of  assured, 

10-1  ^  20. 
obtained  by  agent  as  superintendent,  318  §  57. 
vendor  anil  vendee.  308  §  12. 
as  between  wile  and  husband's  creditors.  10.3  §  30. 
as  between  tenants  in  common,  150  t?  4;  100  §  7. 
policy  obtained  in  name  of  one  covering  his  interest,  and  of  olhcrd 

owning  property,  15'J  g  5. 
lessor  and  Icsee,  101  §  10. 
as  affected  bv  agreement  with  third  party  to   opcrato  plantation, 

100  g  6.  " 
as  between  owner  entitled  to  redeem  and  one  having  conveyance  and 

posscEsicm  as  security  lor  debt,  103  §  31. 

(Sec  MOBTGAaOK  and  MoUTGAGliK.) 

INVASION, 

risk,  204  §  17. 
cause  of  loss,  292  §  9. 

IOWA,  statute  allows  assignment  though  prohibited   by  condition,  43  g  3. 

JUDGMENT,  encumbrance,  87  §  2. 

(See  Encumbrance!.) 

KENTUCKY,  statute  as  affecting  warranty  and  representation,  303  §  58. 
KEROSENE  OIL, 

lighting,  165  §13;  166  §7;  297  §7;  300  §  18,  19;  301  §33:400§1. 

evidence,  116  5^89. 

storing  or  keeping,  397  §  7  :  298  ^  8;  399  §  13. 

burden  of  proot  on  compiny,  J300  tj  '8. 

as  a  question  for  court  or  Jury,  113  jj  71. 
(See  Storing  and  Keeping.) 

LANDLOIiD  AND  TENANT.    (See  Inteueht  in  Policy.) 

LEASE, 

building  standing  on  leased  ground.  30  §  14. 
as  atrceting  title,  310  ;«  25,  27 ;  311  ij  28.  31 ;  31S  §  39. 
LESSOR  AND  LESSEE,  subrogation,  304  i^  10. 

(Sec  iNTi'.REST  IN  POLIOY.) 

LEX  LOCI.     (See  Pi-ACK  of  Making  Contract.) 

LIEN,  as  affecting  title,  317  §  50. 

(Sec  Interest  in  Policy  ;  Titli!.) 
I.rOIlTlNO. 

fluid,  300  g  10. 

gasoline,  140  §  17;  100  §  3,  4,  5. 

kerosuiie,  105S1.  3;  i00§7;  207^7;  800  §  18,  19;  801  g  33;  403 §  1. 

mineral  sperm  oil,  100  §  0. 

naphtiia,  400  §  1. 

headlight  oil,  407  §  2. 

(Seo  Storing  and  Kiibpino.) 


IKDBX. 


4S3 


LIMITATION  CLAUSE, 

valid  iiml  will  bo  enforced,  168  5?  5;  170  g  13;  171  §  2". 

wlien  tinio  conmienprs  to  run,  1G9  §  13,  15) ;  1738  27.  83;  397  §  1. 

waiv(>r,  to  5?  ;J7  :  1U7  §  3,  4  ;  IBS'g  fl,  7,  8;  170  §  18;  171  §2:3,  2^; 

172i?2»;  ;?4;?§r);  40:5  i^l. 
effect  oi'  ncp;oli;ilion  for  sctttcmcnt,  lO.SSJ  8  ;  170  g  19. 
effect  of  iifljiiHtincnt  iiiul  pronii.^o  lo  p;iy,  358  §  27.' 
amcndmont  of  process,  170  g  17. 

operative  !iUlioii'j;li  nssurc(J  deponclsupon  parol  contract,  233  §  17. 
spociiil  nuitnul  companies,  101  §  Ct-i. 
stockholder  personally  liublo  for  debts  cannot  avail  bltnscU   of, 

lij!)  S  14. 
notice  and  demand  not  construed  as  proaccutiou,  170  §  21. 
inoperative  under  Maine  statute,  171  g  24. 
nojTlcct  to  sue  receiver,  10!)  55  H. 
effect  of  attacliment,  107  ^  '.i. 
effL'ct  of  option  to  rebuild,  173  §  31. 
effect  of  an  injunction,  171  §  25,  36. 
etTect  of  war,  169  §  10. 
(ffect  of  failure  previous  action,  109  §  9. 
clfcct  of  discontinuance  of  first  action.  167  §  1. 
discontinuance  induced  by  promise  of  settlement,  172  §  80. 
cffcctot  suit  bcinpt  brought  in  behalf  of  all  creditors  againBt  in- 
solvent company  after  limited  time,  170  §  16. 
LOCALITY  OP  PROPERTY  INSURED,  warranty  and  representation,  890 
§3,  3, 4;  391  §  2.  5,  8;  293  §  11,  13;  303  §13;  204  §  18;  295821; 
355  §13;  356  §13;  406^51. 

(See  Risk  ;  Warranty  and  Rbprbsehtatios.  ) 
LOUISIANA,  foreign  company  liable  to  only  one  liconso  fee,  128  §  8. 

MAIL,  . 

notice  by,  106  t?  31 ;  108  §  41 ;  110  §  54,  56. 
furnishing  proofs  of  loss  by,  264  §  70. 

MAINE, 

authority  of  agent  under  statute,  20  §  95. 

defense  of  other  insurance,  233  8  St. 

lion  of  mortgagee  on  insurance  money,  175  §  14. 

limitation  clause  inoperative,  171  §  34. 

defense  of  overvaluati(m,  239  §  9. 

defense  of  use  and  occupation,  337  §  19. 
MARYLAND,  re-insurance,  279  §  7, 

MASSACIIUSET  rs,  effect  of  statute  on  warranty  and  representation,  800 
§38;  363  15  40;  374  §105. 

M.VTERIALITY, 

benzine,  64  §  3. 

concealment  of  application  to  other  agent,  64  §  4. 

incumbrance,  O.!  §  10;  87  g  1 ;  83  §  8;  373  §  90, 101,  102. 

mort'jcage,  64  g  3. 

other  insurance,  223  §87. 

distance  between  huiltlings,  413  §  5. 

incrcas-'c  of  lisks,  395  §  1,  «,  3. 

of  representation,  357  §  19;  363  §  49. 

value.  238  g  1.  3;  2ti0  g  6;  401  §  3.  „„,„,„     „„o 

warranty,  S.'.e  g  i:i,  16;  358  g  24;  360  §  33,  34,  37;    363  g  45;  863 

g  56 ;  364  g  (!3 ;  365  g  67 ;  370  §  88. 
if  facts  undisputed  (juestion  of  law,  309  §  12. 
determined  by  contract,  339  §  7;  268  §  3;  414  §  9. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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440 


INDEX. 


MEASURE  OF  DAMAGES,  action  by  agent  against  company,  12  %  52, 

(See  Dahaqbs.) 
MECHANIC'S  LIEN, 

confers  an  insurable  interest,  158  §  46. 
contractor  insured  not  bound  to  proceed,  84  §  19. 
effect  of  filing  notice,  34  §  64. 
effect  of  foreclosure,  26  §  15. 
no  incumbrance,  89  §  18;  SO  §19. 
executions,  118  §  3. 
(See  Title.) 
MERCHANDISE,  does  not  include  petroleum,  299  §  18. 
MISSOURI,  statute  giving  damages  for  vexatious  delay,  894  g  3. 
MISTAKE,  in  ordering  or  consenting  to  cancellation,  54  g  2. 

(See  Refukmation.) 
MORTGAGE, 

as  alienation,  29  g  35 ;  81  §  43 ;  82  §  48,  49 ;  82  g  53 ;  83  g  55,  67; 

34  ^  61 :  389  g  1. 
as  affecting  title.  28  g  29 ;  807  §  8 ;  309  g  16 ;  811  g  82 ;  312  g  34 ;  818 

g39;  314  g  41. 
eflFect  of  foreclosure,  25  §  11;  26  g  17;  29  g  36;  80  g  40;  31  g  44, 

46,  40. 
incumbrance,  34  g  61. 
concealment,  64  §  3;  65  g  10. 

consent  to  sale  includes  consent  to  mortgage,  30  g  30. 
void  sale  under,  33  g  58. 

consent  to,  does  not  include  foreclosure  proceedings,  33  gOO. 
(See  Encumbrancr.) 
MORTGAGOR  AND  MORTGAGEE, 

effect  of  foreclosure,  173  g  2;  176  g  17. 

effect  of  mortgagee  clause,  79  §  17 ;  178  g  30 ;  307  g  2;  898  g  8. 

effect  of  clause  making  loss  payaLIe  to  mortgagee,  173  g5;  174  §  6; 

176  §18. 
effect  of  nssignmcnt  of  whole  right  of  action  to  party  to  whom  los« 

iapuyable,  177  §  24. 
effect  of  option  to  rebuild,  179  §  31,  82. 
effect  of  repairing  or  restoring  building,    177  §  20;  182  §  46,  48; 

807  §  1. 
money  received  by  mortgagee  takes  place  of  property   destroyed, 

175  §  12. 
amount  received  by  mortgagee   deducted  from  amount  due  uudcr 

policy,  173  §3;  178  §  26. 
how  affected  by  other  insurance,  179  §  30;  180  §  33;  181   §  41 ;  82r» 

§47;  226  §49;  400  §  5. 
contribution,  78§  14;  79  §  15:  181  §  42;  400  §  5. 
subrogation,  178  §  28;  179  §  30  ;  182  §  46.  47;  303  §  4. 
company  compelling  assignment  of  mortg.igc,  174  g  9. 
insurance  on  iuterest  of  mortgagee,  174  g  10;  175  g  11. 
interest  of  mo.-tgagee  in  insurance,  174  g  7  ;  179  g  32;  180  g  34,  .{5, 

89;  183  g  49. 
insurance  nioney  applied  upon  mortgage  debt,  174  i;  8. 
raortirugee  not  liable  to  account  lor  insurance  obtained  by  him,  179 

820. 
who  may  furnish  proofs  of  loss,  265  g  74.  75 ;  207  g  82  ;  384  g  1 . 
who  may  sue,  178  g  25  ;  385  g  8,  11;  386  g  17;  387  g  18;  4 14  g  1,2, 

f)nyment  to  mortgagee  t  <  whom  loss  is  [)ayablc,  3S.'>  ij  6. 
ien  upon  insurance  money  under  Maine  statute,  175  g  14. 
reformation  of  the  mortgage,  175  §  8. 


IKDEX. 


l%62. 


33  §55,  57; 
12  §34;  818 
40;  31  §44, 


§00. 


?98  §  3. 
i5;  17456; 

I  whom   loss. 


82  §40.  48; 
f  destroyed, 
it  duu  uudcr 
1   §41;  23r» 


180  g34,  W, 


by  him,  179 
384  8  1 . 

;  4i4§i.a, 


MORTGAGOR  AND  MORTGAGEE-Mnitnuei. 

premiums  paid  by  mortgagee  added  to  debt,  177  §  22. 

eflect  of  agreement  to  sell  mortgage,  and  partial  payment  on  account 

of  it,  177  §21.  ^^ 

mortgagee  no  authority  to  consent  to  cancellation,  177  §  20, 28. 
evidence  of  declarations  of  owner  in  suit  brought  by  mortgagee,  178 

§  27. 

aesarcd  not  prejudiced  by  mistake  in  making  policy  to  mortgagee, 

178  §26. 
rights  of,  to  return  premium,  181  §40. 
parol  evidence  in  action  brought  by  mortgagee  to  bIiow  intent,  180 

37. 
mortgagee  not  bound  by  adjustment  with  assured,  180  §  30. 
assignment  by  mortgagee,  181  §  43. 
legal  title  to  policy.  181  §  44. 
liable  to  account  for  insurance,  182  §  47. 
effect  of  death  of  assured,  1 82  j?  45. 
mortgngee  takes  assignment  subject  to  being  declnred  void  by  nets 

of  assured,  180  §38. 
not  necessary  to  establish  lien  upon  whole  property  covered  by  in- 
surance, 173  §4. 
liability  of  company  not  affected  by  any  question  of  security,  178  §  1. 
insurance  not  limited  to  value  of  equity  of  redemption,  170  §19. 
effect  of  stipulation  in  mortgage  for  insurance,  175  §  15 ;  170  !5 10; 

400  §  5. 
mortgagor  remains  liable  to  assessment,  195  §  71. 
mortgagee  assignee  of  mutual  policy,  200  §  97. 
right  of  mortgagee  to  deposit  premium  with  mutual  company,  210 

§144. 
conveyance  by  former  to  latter,  33  §  50. 
MUTUAL  COMPANIES, 

effect  non-payment  of  assessment,  212  §  155. 
assessment  liable  to  garnishment,  213  §  159. 

assessments,  190  §43,  44,  45;  191  §48.  50;  192  §60,  67;  193  §  00, 
64,65;  194  §08,  09;  201  §100;  204  §117;  207  §128;  208  §180: 
210  §147;  399  §4. 
payment  of  assessment,  209  §  139 ;  211  §  148. 
validity  of  assessment  as  depending  on  ability  to  collect,  898  §  2. 
waiver  in  receipt  of  assessment,  203  §  111 ;  2i)4  §  115;  211  §  149. 
waiver  non-pi^yment  of  assessment,  203  §  109 ;  204  §  113;  200  §  140. 
effect  of  taking  promissory  note  for  assessment,  398  §  3. 
waiver  other  insurance  by  receipt  of  assessment,  203  §  109. 
waiver  by  knowledge  of  agent  and  payment  of  dividend,  399  §  5. 
notice  of  assessment,  183  ^  3 ;  187  4$  40;  207  §  132. 
nctico  of  assessment  to  legal  representatives.  202  §  103. 
waiver  by  assossment,  18(5  §  21 ;  300  §  90  ;  202  §  105. 
EBsessmcnt  when  insurance  eilcctcd  by  ngent  not  having  complied 

with  statute,  2ii0  §  93. 
liability  to  nssessment,  189  §  41 ;  108  §  89;  200  §  95;  200  §  127;  207 

§131;  209  §  141;  210  §140. 
assessment  and  cancellation,  199  §  01. 
lien  of  judgment  for  assessment,  200  §  125. 
invalid  assessment,  208  §  135. 

assured  cannot  relieve  himself  from  his  obligation,  200  §  124. 
dccltiration  to  sustain  suit  for  an  assessment,  193  §  59. 
'  assessment  under  Massiichusotts  stututc,  188  §  33,  84. 
assessment  upon  lost  note,  185  §  18. 


442 


INDEX. 


MUTUAL  COMPANIES— (»»«irc?/f<?. 

assessment  including  purtica  not  liable,  185  §  14. 

asse«^mcnt  by  receiver,  135  §  17. 

coinplianoo  wiLii  every  step  required  k  i  rjlerence  to  ftr.'jessinent  mua'j 

bo  averred,  !«")  §  12. 
excessive  assL'ssmont,  184-  §  fj;  308  §  8, 
assij^Mieo  liable  to  assessment,  19j  i?  VIJ. 
uiortgagec  remains  liable  to  assi'ssment,  lOT  §71. 
assessment  for  unearned  premiums,  183  §  35. 
duty  to  m.ike  assL'ssment,  187  §  2i). 
premium  note  to  company  not  having  complied  witb  statute,  1C3 

§49;  137  §  55;  185  t^  19;  203  §  101;  204  S  114. 
authority  agent  to  extend  time  payment  of  note.  213  §  15t. 
application  policy  and  note  one  instrument,  211  §  151. 
policy  and  note  one  contract,  107  §  83. 
right  of  foreign  company  to  collect  premium  note,  213  §  153;  213 

§158. 
lien  lor  amount  of  note,  305  §  111), 
premium  note  negotial)le,  203  §  100. 

estoppel  dclcnse  founded  on  non-ptiyment  of  note,  202  §  107. 
note  t)btained  by  false  represcntationa,  201  §  98. 
cancellation  of  premium  note,  200  §  131. 
effect  payment  of  premium  as  waiver.  199  S  90. 
note  of  married  woman  in  Indiana,  207  g  lliO. 
prtsumption,  validity  of  premium  note,  20'J  §  123. 
rij;ht  to  recover  lull  amount  of  premium  uotc,  20ii  §  133. 
notes  for  premium  in  advance,  197  §  85. 
purpose  for  which  note  given  question  for  jury,  198  §  86. 
misrepresentation  of  agent  iu  suit  on  note,  193  j?  03. 
form  of  note  not  conclusive,  186  §  33. 
Btatutu  of  limitations  against  premium  note,  185  §  15. 
assured  has  right  to  look  to  whole  amount  of  promium  notes  for  In- 
demnity, "l83  g  3. 
premium  nolo  payaUlo  as  required,  184  §  0. 
ratification  of  agent  in  giving  premium  note,  193  §  C5. 
li  ibility  upon  premium  note.  10(5 1}  7i). 
note  in  German  language,  188  §  ;i('>. 
recovery  on  premium  note,  187  g  20. 

condition  suspending  liabili'.y.  premium  not  paid,  187  §  37. 
compromise  of  premium  note  by  agent,  187  §  28. 
effect  of  misdtaciiption  in  suit  on  note,  191  §  40. 
negotiability  of  premium  note,  190  §  47. 
premium  note  not  deposit  note,  190  §  4G. 
effect  of  alienation,  101  §  51;   190  §  77  ;  210  §  145. 
assignment,  195  §  74. 

authority  of  agent  to  consent  to  assignment,  195  §  74. 
cancellation,  190  §  43;  191  §51;  197  §  83;  201  §  117;  310  §  143; 

213  §157. 
poliev  voidable  only,  204  §  115,  117  ;  207  §  131 ;  200  §  140. 
insolvency.  181  i?  9;  185  4!  Itl;  199*5  93;  207  §  133. 
member  no  claim  for  reimbursement  on  ground  of  inBolvcnqy  of 

eon)|) my,  199  J?  93. 
set-oti;  1H7  S  30;  194  §  00  ;  190  §  75  ;  200  §  ISO. 
Bct-olf  company  in  hands  of  roceivei',  188  §  33. 
nssignees  l)ccome  members,  188  §  31. 
suspension  of  liability,  180  §  3i- ;   187  8  37  ;  103  §  03:    194  §  67,  09; 

197^80,  81;  198  §S7;  203  §  113;  201  §  115,  117. 
liability  of  fund  in  hundd  of  receiver,  100  g  V8  ;  107  §  79. 


IKDEX. 


it  mua!; 


lands,  205  §  120. 


to,  135 


!;  813 


for  in- 


§143; 
ncjf  of 

07,  00; 


MUTUAL  COmPXmE^—eontinu'd. 

liahility  of  member  to  receiver,  103  §  54. 

claim  of  counsel  on  fiiiui  in  receiver's  hai 

waiver  of  notice  by  assured,  194  §  60. 

notice  to  ngenl,  SOii  S  134. 

notice  question  for  jury,  204  §  U6. 

publication  of  notice,  303  §  lio. 

cllect  of  signing  application,  ISO  §  30. 

meinb:^r3  prcsunieil  to  know  conditions  180  §  38. 

two-tliinis  and  tlii'ee-foiirtlis  clause.  180  §  37. 

legal  projcecling.-i  as  waiver,  l!)7  §  83. 

eftect  surrender  of  palicy  to  a  stranger,  lO'S  8  88. 

statute  of  limitations,  103  §  CI. 

claun  of  member  to  interest,  105  g  70. 

effect  of  act  of  forfeiture  by  member  of  a  partnership  insured,  193 

§  73. 
right  of  mortgagee  to  deposit  premium,  310  §  144. 
issuing  of  policies  for  cash  premiiuns,  210  §  143. 
effect  of  payment  of  loss  borrowed  money,  184  §  4. 
statute  voids  policy  in  hands  of  person  in  default,  184  §  11. 
right  of  assignee  to  give  notice  and  proofs,  184  §  10. 
wlio  may  sue,  184  §  7. 

personal  liability  of  directors  in  Indiana,  185  §  18. 
liability  of  member  not  extended  by  amalgamHtion  of  company  with 

another,  186  i|  34. 
policies  payable  in  gold,  186  §  33. 
special  limitation  clause,  101  §  53. 
mortgagee  assignee,  200  §  07. 
effect  of  judgment  bankruptcy  court,  197  §  81. 
authority  ot  agent,  300  §  139. 
effect  of  paying  premium  in  cash,  184  §  8. 
waiver  of  clause  in  regard  to  premium,  186  §  35. 
estoppel  by  acknowledging  receipt  of  premium,  207  §  129. 
waiver  payment  of  premium,  209  §  138. 
installment  note,  208  §  137. 
arbitration,  207  §  134. 

effect  of  negotiations  for  compromise  as  an  estoppel,  300  §  94. 
tender  of  premium  after  loss  ineffectual,  301  §  01!. 
return  of  policy  with  knowledge  of  forfeiture,  waiver,  301  §  99. 
alteration  of  receipt  given  for  premium,  302  §  103. 
directors  cannot  ratify  what  cannot  authorize,  301  §  101. 
right  of  mortgagee  to  maintain  action,  303  §  108. 
insurance  limited  to  three-fouitbs  of  the  value,  205  §  118. 
premium  part  cash,  311  §  150. 
waiver  prepaymenc  by  deliviry  of  policy,  313  §  153. 
member  when  entitled  to  policy.  313  §  150. 
effect  of  uli'jnatuin  under  Canada  statute,  393  §  I. 

NAPHTHA,  lighting,  400  §  1. 

(8ec  Stouiko  and  Krhtino.) 

NEGLIGENCE, 

(lo(;3  not  avoid  policy,  313  §  1. 
does  not  amount  to  increase  of  risk,  147  §  24. 
NEW  YORK,  under  tho  code  an  equitable  assignment  is  a  legal  aaslgnment, 

47  §  38. 

NOTICK, 

reasonable  time,  35  §  11. 
vacant  or  unoccupied,  337  §  83. 


INDEX. 


mOTlCE—eontinued. 

constructive,  349  §  36. 

to  agent.  394  §  1. 

to  secretary  on  (street  of  fact  affecting  risk,  5&  §  22. 

by  mail,  106  §  24;  108  §  41 ;  110  §  54,  56. 

(See  Agent;  Esvoppel;  Waivkb.) 

NOTICE  OP  LOSS, 

authority  of  agent,  8  §  26. 

condition  precedent,  215  §  12, 14. 

sufficiency  of,  214  §  4,  5,  8;  215  §  10,  11,  18;  216  §  16,  17,  18,  19; 

399  §  1. 
BOfficiency  question  for  jury,  214  §  7;  217  §  23. 
•waiver  of,  214  §  8;  215  §  9;  216  §  17;  845  §  19. 
waiver  of  proofs  waives  notice,  214  §  6. 
waiver  question  for  jury,  268  §  1. 
waived  l)y  examination,  117  §  4. 
local  agent,  214  §  1,8. 
by  assignee,  216  §  20. 

by  party  to  whom  loss  is  payable,  217  §  21. 
vendee  assured  dead,  214  §  2. 
re-insurance  contract,  281  §  17. 


OCCUPATION.    (See  Use  and  Occupation.) 

OHIO, 

averment  of  insurable  interest,  241  §  5. 
service  of  summons,  242  §  13.  . 

OPEN  POLICY, 

overvaluation  immaterial,  228  §  2. 
i-iBk  under,  291  §  C 
OTHER  INSURANCE, 

autlioritv  of  agent  to  consent  to,  20  §  03. 

notice  ol',  220  §  18;  222  §  32. 

notice  of,  to  soliciting  agent,  99  §  31 ;  100  §  36. 

notice  to  agent  to  take  application  not  binding,  12  §  50. 

notice  of,  to  agent,  93  §  1 ;  218  §  6. 

notice  to  broker,  .  '7  §  1. 

effect  of  knowledge  >>f  agent,  20  §  99;  180  §  37;  225  §  45. 

knowledge  of  agent  not  equivalent  to  consent  iu  writing,  227  §  S4. 

knowledge  of  soliciting  H,'»«nt,  220  §  51. 

waiver  by  agent,  349  §  39, 

Chtoppel  by  statement  of  ngbiS  345  i)  18. 

renewal  by  agent,  with  knowl!"^ge,  J43  §  2. 

assured  bound  to  give  notice,  Ji7  §  8. 

consent  to,  221  §  26,  27. 

consent  to,  does  not  prevent  change  of  companies,  809  §  1. 

consent  must  bo  given  as  required,  22b  >  35. 

mistake  of  company  in  indorsing  consint,  222  §  34. 

consent  definite  only  as  to  amount,  222  5  80. 

notice  of,  sufficient  in  case  of  parol  con    act,  233  §  8;  234  §  21 ;  230 

§31;  238^41. 
contract  invalid,  220  §  17,  21;  221  §  24;  228  §  39;  224  §41;  227 

§  S«.  fi5. 
validity  of  policy,  225  §  44. 

waiver,  219  §  11,  12,  13;  351  §  47;  852  §  51 ;  899  §  5;  403  §  3. 
waiver  of,  by  mutual  company,  by  receipt  ot  assessment,  203  §  109. 
effect  of  statement  iu  proofs,  93  §  8. 


INDEX. 


445 


',  18. 19; 


i7  §  64. 


OTHER  INSURANCE-(»n«r -^. 

waiver  by  adjuster,  Si'    3  42 ;  346  §  23. 

effect  of  compromise,  settlement  and  payment,  831  8  24:  234  8  40- 
237  §  53.  B      •         8      I 

wiiat  constitutes,  217  §  2;  318  §  6,  8.  10;  219  8  14;  221  S  21  23- 

222  §  28,  29.  33;  233  §  38,  39;  335  §  46;  238  §  50;  227  §  55'; 

3!)9g2;  400§4,  5.  ^  **       ' 

two  policies  containing  same  condition,  220  §  17;  331  §84;  320  §52. 
mortgagor  and  mortgagee,  181  §  41,  48. 
effected  by  mortgngee,  225  §  47;  236  §  49;  400  §  5. 
mortgagee,  how  aflected  by,  179  §  80;  180  §  S3. 
by  mortgagor,  after  assignment  of  mutual  policy  to  morteaprcc,  20O 

§  97.  ^ 

policy  voidable  only,  218  §  7;  326  §  53 ;  400  §  4. 
estoppel  parol  contract,  238  §  41. 
csfo])pti  by  fraudulent  representations  of  agent,  94  §  8. 
motive  in  obtaining,  immaterial,  323  §  oO. 
assured  holding  certificate  sul)ject  to  terms  and  conditions  of  policv, 

325  i?  45. 
after  assignment  of  policy,  224  §  43. 
company  not  having  complied  with  statute,  225  §  48. 
renewal  not  effecting,  28(5 1^  5. 
defense  of,  available  luider  general  issue,  344  §  37. 
prove!  by  parol,  331  §  25. 
niateriaiily  of  representation,  223  §  37. 
warranty  and  representation,  356  §  14. 
condition  precedoit,  317  g  4. 
ignorance  of  assignee,  219  §  16. 
indorsement  does  not  create.  219  §  15. 
permission  applies  to  prior  as  well  as  sul)acqucnt,  218  §  0. 
policy  issued  to  tenants  in  common,  230  §  22. 
marine  policy  230  §  20. 
c<mdition  valid,  22i>  §  19. 
defensu  of,  under  Maine  statute,  223  §  31. 
conditional  on  termination  of  another  policy,  71  §  10. 

OVERVALUATION, 

what  constitutes,  339  §  0,  7,  10;  401  §  1. 

eftect  of,  228  §  4. 

etlect  of  knovvledgs  of  agent.  100  §  37. 

representation  material,  228  §  1 ;  401  §  3. 

as  question  lor  jury,  356  §  15;  401  §  1. 

warranty  and  representation,  350  §  15 ;  363  §  53,  56. 

open  policy  immaterial,  238  §  3. 

renders  policy  void,  328  §  3. 

not  established  by  a  mere  overestimate,  338  §  5 ;  839  §  6. 

evidence  offers  of  purchase,  339  §  8. 

defense  of,  under  Maine  statute,  229  §  9. 


I  21 ;  33« 
41 ;  887 


13. 

J§  109. 


PAROL  CONTRACT, 

authority  of  company  to  make.  2:',0  §  3;  233  §  14;  837  §  88,  89. 
authority  ofagenl.  7  §24;  13§58;  3;>-0§5;  232  §  fl;  234  §  83;  2S6 

§33,  34;  401  §  1;  403  §  3. 
authority  of  clerk,  335  §  28. 
sutlicicnt  to  sustain  action,  230  §3. 

evidence  to  sustain,  232  §  10, 13.  „,>    „„„o.,. 

essentials  of,  233  §  16,  19;  234  §  23;  285  §  24;  230  §  35;  838  §  4J, 

44;  403  §3,  3. 


446 


INDEX. 


PAROL  CONTRkCT— continued. 

evidence  must  be  clear,  233  §  18. 

eabject  to  tertna  and  conditions  of  policy  as  nsanlly  issued,  225  §  45 ; 
230  §  1;  231  §  8;  332  §  11 ;  2H;i  ^  17;  234  §  20;  235  §  25. 

subject  to  statutory  conditions  in  Canada,  23ii  §  30. 

assured  bnund  to  rIvc  notice  of  other  inaurance,  234  §  21 ;  238  §  41. 

not  necessary  that  consent  to  other  insurance  indorsed,  232  §  8:  236 
§31. 

damages,  7  §  24 ;  235  §  27. 

decree  for  delivery  of  policy  and  recovery  of  amount  in  one  action. 
£33  §  15;  235^26;  238  §  43. 

by  marine  company,  inference  as  to,  295  §  22. 

in  Qcorgia,  sustained  by  estoppel,  233  §  18. 

premium  as  an  clement,  336  §  29. 

to  renew,  333  §  19. 

not  extended  by  implication,  236  §  32. 

suit  in  equity,  337  §  36. 

no  merger  into  policy,  337  §  37. 

aBSured  may  recover  amount  under  policy  in  suit  by  company  to  have 
parol  contract  decreed  void,  237  §  40. 
PARTIES  TO  ACriON, 

partner  who  has  acquired  entire  interest,  27  g  23. 

administrators  to  use  of  vendee,  24  §  7. 
(See  Who  May  Sob.) 
PARTNER,  transfer  of  interest,  27  §  18,  19,  21 ;  30  §  37;  46  §  18. 
PARTNERSHIP. 

transfer  by  one  partner  o"  interest  to  third  party,  84  §  63. 

as  affecting  title,  308  §  14. 

effect  appointment  of  reeeiver,  89  §  34. 

one  who  has  acquired  entire  interest  may  sue,  27  §  22. 

cttect  of  act  of  forfeiture  by  one  insured  by  mutual  company,  195  g  72. 
PAYMENT  OF  IiO.SS, 

delay  of  sixty  days  substantial  right,  239  §  3. 

loss  becomes  immediately  due  on  denial  of  all  liability,  253  §  8. 

sixty  days  runs  from  time  furnishing  proofs  originally,  239  J?  1. 

sixty  da>s  runs  from  time  examination  delivered  to  company,  proof 
being  waived,  260  §  78. 

examination  docs  not  extend  period  for,  117  §  1. 

to  mortgagee,  efl'ect  of,  3a5  §  (J. 

payment  of  partial  loss  reduces  insurance,  238  §  2. 
PLACE  OF  .MAKING  CONTRACT, 

application  forwarded  from  one  State,  policy  is-      1  in  another,  240 

81- 

countersigning  by  agent,  210  §  2. 
where  application  iiccepicd  i;nd  policy  mailed,  240  §  3. 
bonds  of  agents,  48  §  4. 
PLAN,  reference  to,  37  2  g  97 ;  378  i^  4. 

(See  Diagram;  Wahuanty  and  Rephebbntation.) 

PLEADING  AND  PRACTICE, 

pleading  must  show  forfeiture,  241  §  1. 

pleading  applicition,  244  §  85. 

other  insurance,  incumbrance,  use  and  occupation,  increase  of  risk, 

mav  be  proved  under  general  issue,  244  i?  27. 
waiver  must  be  pleaded,  2i2  {5  12;  844  §  29;  245  §  SO. 
reformation  not  necessary  to  sustain  proof  of  waiver,  358  g  67. 
averment  of  pcrlurmaDce  allows  proof  of  waiver,  100  ^  45;  243 

8  16,  21. 


INDEX. 


447 


225§4?5; 

25. 

238  §  41. 

!§8:  230 


ne  action. 


y  to  have 


,105  g72. 


§8- 

iiy,  proof 


ther,  240 


H.) 


of  risk, 


57. 
45;  243 


PLEADING  AND  PRkCTlCE-continued. 

if  condition  requirea  written  request,  answer  must  aver  it.  242  S  10 

necessary  to  prove  request  for  arbitration,  42  §  14. 

avermentof  compliance  with  conditions  precedent,  241  §  3;  242  §  0; 

conditions  of  policy  by  parol  contract,  231  §  6 

in  suit  upon  parol  contract,  compliance  with' "conditions  precedent, 

<wo<3  §  11, 

interest  must  be  averred,  243  §  23. 
insurable  interest,  243  §  18 ;  405  §  5. 

avenncnt  of  ownership  sustained  by  proof  of  insurable  iiterest  108 
t?  39.  ' 

warranty  and  breach  must  be  set  op  in  answer,  241  §  4;  215  §  31. 
not  necessary  to  aver  and  prove  application  made  warranty,  242  §  15 : 

245  J5  31. 
defense  willful  burning  must  be  epecially  averred,  244  .^  23. 
in  defense  of  alteration,  must  aver  increase  of  risk,  36  g  2. 
nearest  magistrate  must  be  alleged  by  company,  62  §  10. 
in  action  on  adjustment,  must  aver  and  prove  promise  to  pav  iti 

amount,  2  §  9.  r  r  f  j 

increase  of  risk  must  be  pleaded,  806  §  72. 
averments  in  suit  for  reformation,  240  §  17. 
averment  of  insurable  interest  in  Ohio,  241  §  5. 
defense  fraudulent  claim,  243  §  8. 
averment  as  to  loss  being  due  and  payable,  239  §  8. 
averments  defense  refusal  to  submit  to  an  examination,  241  §  8. 
no  variance  renewal  being  issued  in  name  of  one  of  two  parties  orig- 

inally  insured,  245  g  32. 
no  action  lies  in  covenant  upon  indorsement,  244  §  24. 
no  recovery  for  neglect  of  agent  in  declaration  upon  policy,  244  §  26. 
averment  as  to  location  of  property  insured,  243  §  19. 
uncontradicted  letter  written  by  assured,  243  §  20. 
efforts  to  save  property,  243  §  11. 
service  ot  summons  under  Ohio  statute,  243  §  13. 
declaration  must  aver  exceptions  to  liability',  243  §  14. 
payment  to  mortgagee  to  whom  loss  is  payable  as  performance, 

885  go. 
proof  of  interest  under  general  issue  valued  policy,  341  §  2. 
competency  of  juror,  241  §  2. 
effect  of  dissolution  of  company,  241  §  7. 
effect  of  d(  fault  in  Illinois,  214  ^  38. 
authority  of  agent  in  suit  upon  note,  193  §  62. 
declaration  to  sustain  suit  for  assessment,  193  §  59. 
note  in  German  language,  188  §  .'iO. 

mutual  company  must  aver  compliance  with  steps  required  in  refer- 
ence to  fisscssnient,  185  §  12. 
control  of  court  over  suits  brought  by  owner  and  party  to  whom 

loss  is  made  payable,  176  §  18. 
neglect  of  agent  to  forward  process  as  ground  for  vacating  judgmen'j 

obtninod  by  default,  133  «?  86,  o7. 
foreign  company  cannot  plead  non-compliance  with  statute  goveru- 

ing  its  admission,  137  §  56. 
reference  to  form  of  an  agreed  case,  405  §  4. 
action  against  foreign  company  not  necessary  to  avor  compliancu 

with  statute,  128  §  6. 
report  of  referee  conclusive  as  to  facta,  404  §  1. 


448 


INDEX. 


PREMIUM, 

authority  of  agent,  question  for  jury,  13  §  50. 

payment  by  charging  to  agent,  2415  §  6;  248  §  12. 

agent  cunnot  enjoin,  collection  of,  4  §  1. 

book  of  agent  a^ evidence  of  amount  collected,  43  §  2. 

clerk  of  ftg;;nt  binds  company  in  respect  to,  5  §  10. 

liability  of  agent  to  return,  to  assured  company  insolvent,  7  §  21. 

of  agent  to  company,  7  §  21. 

liability  of  agent  of  foreign  insurance  company  for,  17  §  73. 

autiiority  of  broker.  7  §  2S. 

liability  of  broker  for,  0  §  17. 

broker  as  agent  in  receiving,  5  §  9;  C  §  17;  16  §  73. 

payment  of.  by  charging  to  broker,  24U  §  (J ;  247  §  9 ;  318  g  15. 

effect  of  credit  of  local  agent  to  broker,  24U  §  18. 

acceptance  note  of  broker,  249  i?  17. 

company  not  bound  l)y  arrangement  with  broker,  240  §  4. 

-waiver  prepayment  by  broker,  8(4  «^  10,  13. 

giving  credit  to  assured,  349  §  31. 

giving  assured  credit  on  individual  account,  230  §  2.'],  34. 

receipt  of,  as  waiver,  240  §  1. 

waiver,  pavment,  9§  30;  50  §  11;  24Gg  a  ;  247  §  7. 10;  348  §  11; 

249  S  iO,  22. 
representation  as  to,  365  §  C8,  09. 
reJiinding  of,  in  case  of  misrepresentation,  300  §  83. 
assured  entitled  to  return  on  surrender  of  policy,  3")  §  14. 
not  bound  to  return  case  of  lorfeiture  by  act  of  assured,  349  §  19. 
assured  when  entitled  to  return  ol,  348  §  14. 
effect  of  rate  on  increase  of  risk,  147  ^  33. 
effect  of  acknowhulgment  of  receipt,  340  t?  3,  5 ;  248  §  13. 
effect  of,  on  question  as  to  use  and  occupation,  325  §  8. 
rate  of,  as  affecting  question  under  clause  in  regard  to  storing  or 

keeping,  297  t{  3. 
prepayment  of,  as  effecting  consummation  of  contract,  70  §  7. 
payment  of,  as  affected  by  Canada  statute,  403  g  1. 
as  an  element  of  parol  contract,  330  g  39. 
taxation,  305  g  1,  3. 

acceptance  of,  waives  condition  suspending  liability,  193  §  03. 
president  personally  liable  for  repayment,  349  §  30. 
taking  note  in  payment,  13  §  50;  347  §  8. 

return,  rights  to  as  between  mortgagor  and  mortgagee,  181  §  40. 
evidence  of  usual  rates  on  same  class  of  property,  114  §  83. 
no  presumption  of  exception  of  explosion  risk  on  account  of  special, 

120  g  6. 

PREMIUM  NOTE,    (See  Mutual  Companies.) 
PROOFS  OF  LOSS, 

essentials  of,  255  §  18. 

condition  precedent,  357  §  30;  303  §  03;  304  §  72. 

as  to  sufficiency  in  point  of  time.  114  §  79  ;  310  §  17  ;  353  §  9;  255 

§  17 ;  358  §  m  ;  359  §  43;  300  §  45  ;  200  §  77  ;  4u4  §  7. 
service  on  local  agent,  203  §  55 ;  271  g  3. 
authority  of  agent,  11  §44. 
must  be  made  by  assured,  2r>8  g  33,  87  ;  403  §  3. 
may  be  furnished  by  wife  of  assured,  104  §  11 ;  251  §  3. 
by  mortgagee  or  party  to  whom  loss  is  payable,  2155  §  73,  74,  75  ; 

207^83;  384  §  1. 
sworn  to  by  one  partner,  258  §  30. 
by  whom  furnished  policy  assigned  in  trust,  257  §  29. 


ent,  7  g  21. 

r  §  73. 

J18  §  15. 

§4. 

34. 

10;  248  §11; 

14. 

J,  249  §19, 

13. 

to  storing  or 

70^7. 

INDEX. 


449 


193  §  C3. 


181  §  40. 
§83. 
uutof  S2)0cial, 


253  §9;  355 

§7. 


3. 

'  §  73, 74,  75  ; 


PROOFS  OP  LOSS— eontimed. 

policy  insuring  the  people,  254  §  15. 

objections  must  be  promptly  and  specifically  made,  253  8  7-    256 

§  24;  261  §50;  403  §  3.  '         8     . 

objections  must  be  pointed  out  in  time  to  be  remedied,  254  8  11. 
in  objection  compnny  not  bound  to  specify  all  its  defenses,  2B0  §  47i 
eflfect  of  statement  of  amount  claimed,  257  §  25, 
effect  of  false  statement  as  to  title,  255  §  30', 
statement  as  to  incumbrances,  258  §  38. 
as  evidence,  IIG  §  91  ;  257  §  31.     *  , 

honest  statement  of  facts,  201  §  52. 
substantial  compliance  all  required,  262  ^  56. 
assured  bound  only  to  furnish  such  particulars  as  within  his  power 

251  §1;   201  §51. 
assured  not  bound  by  statement  in,  254  §  13,  14;  262  §  57;  267  8  85; 

403  §4  ° 

delay  of  sixty  days  substantial  right,  239  §  3. 
mailing  of.  264  §  70. 
waiver;  97  §  19;  251  §  1,  2;   252  §  5;    254  §  10:  256  §  22;  357  §  28, 

30;  258  §  34,  35,  39;  259  §  40,  43;  200  §  44,  46,  47,  48;  261 

§  49,  63, 54 ;  262  §  55,  58,  59 ;  263  §  61 ,  63, 64,  65 :  264  §  67,  68, 

71 ;  26(1  §  78.  79,  80,  81;  267  §  83,  86;   3i  ,•.  §  1;  .'?43  §  5;   349 

§  35 ;  404  §  5. 
waiver  by  arbitration,  263  §  65 ;  348  §  29 ;  410  §  4. 
denial  of  liability  as  waiver.  252  §  6 ;  253  §  8 ;  403  §  1. 
authority  of  agent  to  waive,  11  §  46. 
waiver  under  Canada  statute,  404  §  6. 
facts  undisputed  question  for  court,  257  §  27. 
compliance  and  waiver  question  for  jury,  255  §  19;  256  §  23;  257 

§  32;  264  §  69;  267  §  84;  404  §  7. 
signature  of  magistrate  presumed  to  be  genuine,  61  §  5. 
conditions  in  regard  to,  annexed  to  policy,  262  §  60. 
assured  holding  iour  policies  bound  to  furnish  one,  2C3  §  66. 
right  to  inventory.  266  §  76. 
if  waived  and  assured  examined,  sixty  days  runs  from  latter  time, 

266  §  78. 
sufficiency  of,  furnished  to  re-insuring  company,  254  §  13. 
piirticular  account  of  each  item  insured  must  be  furnished,  256  §  21. 
reformation  does  not  require  new,  259  §  41. 
compliance  with  condition  must  be  pleaded,  241  §  3. 

QUESTIONS  FOR  COURT  AND  JURY, 

alteration.  36  §  3. 

cancellation,  55  §  7. 

payment  return  premium  on  cancellation,  59  §  24. 

agent  lor  purpose  ol  cancellation,  270  §  14. 

concealment,  64  §  1  ;  65  §  9. 

incumbrance,  87  §  1 ;  373  §  101. 

fraud  and  falce  swearing,  2a9  §  8. 

increase  ol  risk,  144  §  6,  8;  145  §  11,  12;  148  §  28;  269  §  13 ;  297 

§  4 ;  316  §  52 ;  3^8  §  40 ;  395  §  3. 
risk  in  use  of  stove,  293  §  15. 
notice  of  fact  affecting  risk,  58  §  28. 
misrepresentation,  270  §  17 ;  365  §  69. 
overvaluation,  228  §  1 ;  239  §  10;  350  §  15;  401  §  1. 
reformation,  275  §  8  ;  276  §  16. 
Btoring  or  keeping,  298  §  11 ;  801  §  31,  28. 

Vol.  11.-39 


450 


INDEX. 


QUESTIONS  FOR  COURT  AND  JURY— continued. 

use  and  occupation,  825  §  8 ;  327  §  19. 

vacant  or  unoccupied,  ViQ  §  1 ;  a80  §  10  ;  833  §  20;  387  g  34  ;  :539 
§42,  48;  34U§44. 

waiver,  247  §  10 ;  845  §17. 
,  breach  of  warranty.  268  S  4 ;  875  §  108. 

kerosene  oil,  118  §  71 ;  1 10  §  80. 

explosive  nature  of  nlcohol,  300  §  17. 

innanimable  qualities  of  liquids,  103  §  6. 

identity  of  agent,  115  §  85. 

nutliority  of  agent  as  to  premium,  13  §  50. 

error  in  writing  should  bu  determined  by  court,  07    ^8;  208  §  2  ; 
270  §  10. 

meaning  of  words,  208  §  5,  7  ;  883  §  28. 

knowledge,  804  §  08. 

materiality,  208  g  8;  200  §  12;  804  §  03. 

materiality  representation  other  insurance,  223  §  37. 

materiality  as  to  title,  354  §  4 

notice  of  loss,  214  g  7;  215  §  10;  217  §  22;  208  §  1. 

waiver  of  proofs  of  loss,  255  §  10 ;  256  §  23 ;  257  g  27,  82 ;  264  §  60 ; 
267  §84;  414  §7. 

opinion  as  to  value,  103  §0. 

adjustment  may  be  adopted  by  jury  as  evidence  of  value,  102  §  3. 

building  total  "loss,  84  §21. 

ability  to  furnish  bills  of  purchase,  50  §  5. 

facts  undisputed  in  regard  to  certificate,  01  §  0. 

efforts  to  save  property,  269  § !). 

jury  should  give  credit  for  property  saved.  269  §  II. 

form  of  note  given  to  mutual  company,  1H6  g23. 

purpose  for  which  note  given  to  mutual  company,  198  §80. 

alterations,  receipt  given  for  premium,  mutual  company,  802  §  103. 

notice  of  assessment,  204^110. 

reasonable  time,  25  §  11 ;  39  g  15  ;  414  §  7. 

imder  Georgia  code,  jury  may  apportion  loss  to  each  company  is.suing 
joint  policy,  75  4^  8. 

existence  of  a  fire  department,  128  §  7. 

interest  as  damages   in  Buit  against   railroad    company  fur  negli- 
gence, 109  §  46. 

wuat  property  is  covered  by  policy,  382  §  20. 

if  award  nullity  should  not  be  considered  by  jury,  2G9  ^  10. 

right  of  appellate  court  ns  to  amount,  268  §  6. 

flax  included  in  term  grain,  270  §  15. 

whether  goods  owned  or  held  in  trust,  141  §  10. 

liquors  kept  for  sale  contrary  to  law,  142  §  4. 

agency,  10  §39. 

RATIPIOATION, 

by  assured  of  act  of  mortgagee  in  procuring  other  insurance,  226 

§  49 ;  400  §  5. 
employment  of  broker,  10  §  86. 
nets  of  sub-agent,  8  §  27. 
necessity  of  authority,  201  §101. 
issue  of  policy,  70  §6;  72  §  11. 
of  acts  of  agents  in  countersigning,  6  §  15. 
of  giving  of  premium  note,  192  §  65. 
acts  of  agent,  5  §11;  8  §25;  18  §58. 
no  necessity  for,  when  withiu  scope  of  authority,  5  §13. 
by  company  custom  of  agents,  4  §  3. 


187  g  34  ;  :539 


?8;  3C8§2; 


38;  264  §60; 
m\ue,  103  §  3. 


98  §  80. 

ny,  303  §  103. 


mpany  is.suing 
iny  fur  ncgU- 


insuiaucp,  220 


§13. 


INDEX. 


451 


RATIFICATION-con«/itMrf. 

autbority  of  agents,  4  §  4, 

by  assured,  of  agent's  act  in  obtaining  policy,  4  §  7 ;  80  S  98 
(oee  AoKJtT.) 

REIUILD  OR  REPLACE, 

damages  for  failure  to  rebuild,  371  §  4. 
company  liable  to  damaKca  .■  .used  by  delay,  378  S  6 
when  assured  has  claim  for  r(  nt,  373  §  8. 
contract  of  insurance  converted  to  building  contract  271  S  3 
election  must  be  made  in  prescribed  time,  271  §3      '  ' 

niust  be  provided  for  in  contract  as  origin.illy  wriLten.  372  5  10 
cttect  of  rebuilding  In  u  third  party,  2?^  §9.  ' 

eflect  of  rebuilding,  mortgagor  and  mortgagee,  397  S  1 
as  waiver  of  conditions  in  polity,  371  §5. 

assured  should  point  out  ohjectrons  during  progress  of  work  373  S  7 
an  injunction  not  sustainable  restraining  exercise  of  optiou'bv  com- 
pany, 371  §  1.  f         J      ^ 

RECEIPT,  cannot  be  a  release;  binding  only  as  to  amount  paid  on  one  item, 
1  §  3. 

RECEIVER, 

partnership,  no  alienation,  39  §  34. 

of  mutual  companies,  liability  to  counsel,  205  §  180. 

mutual  company,  19t5  §  78;  197  §79;  207  §  133. 
(See  Insolvency  ;  Mutual  Companib?  ) 
RECOVERY  RACK  OP  LOSSES  I'AID, 

suit  on  note  given  by  assured  for  amount  paid  on  policy,  373  5  1 

effect  of  compromise  settli-ment,  373  §  3. 

action  maintainable  in  assumpsit,  373  §  3. 
(See  Adjustment.) 
REFORMATION, 

as  remedy  for  fraud  or  mistake,  93  §25;  274  S5:  276  S  I3  13  15 • 
377  §18;  405  §2.  »     .      .    ^. 

mistake  of  law,  377  §  18. 

mistake  as  to  interest,  21  §  103. 

what  will  warrant.  274  §  4,  5. 

proofs  should  be  clear  and  satisfactory,  274  §  1 ;  375  §  9 ;  405  §  1 . 

must  express  contract  actually  made,  276  §  17. 

question  for  jury,  276  §  16. 

suit  brought  for,  by  company,  874  §  2. 

company  no  relief  in  equity  after  loss,  275  §  10. 

suit  for,  and  recovery  in  one  action,  275  §8. 

parol  evidence  admissible,  112  §68. 

mutual  mistake  necessary,  374  §  107. 

averments  in  suit  for,  243  §  17. 

assured  not  estopped  by  acceptance  of  policy,  231  §7. 

consent  to  other  insurance,  225  §  45. 

does  not  require  new  proofs  of  loss,  259  §  41. 

terms  of  policy  cannot  be  altered  by  knowledge  of  agent,  274  §  3; 
275  §11. 

suit  not  maintainable  after  failure  of  action  at  law,  274  §  6. 

court  cannot  make  new  contract,  375  §  7. 

laches  of  assured,  876  §  14. 

RE-INSURANCE, 

effect  of  pro  rata  clause,  877  §  8;  878  §  4,  6 ;  279  §  9. 

time  of  payment,  879  JjlO. 

right  to,  does  not  depend  upon  payment  to  assured,  870  g  10 ;  280  §  tG. 


452 


IKDEX. 


RE-INSURANCE— eonirnwd. 

notioe  of  loss,  281  §  17. 

famishing  prnofs  of  loss,  254  §  13. 

re-insuring  compiiny  bound  by  adjustment  of  reinsured  company 

with  assured,  279  §11, 
re-insuring  company  bound  by  litigatioo,  280  §13;  282  §21. 
effect  of  in-iolvency,  278  §  5  ;  279  §6,  8;  280  §  15, 
rights  of  re-assui-ed,  281  S  19,  20. 
company  may  purchase  claims  under  policies  re-insured,  and  set-off 

same,  2»0§12. 
no  privity  between  originally  assured  and  re-insurer,  280  §  14. 
in  Maryland,  279  J?  7. 
personal  liability  of  directors,  280  §  15. 
right  of  re  insuring  company  to  relief  in  equity,  277  §1. 
policy  issued  directly  to  assured,  178  §  3. 
condition  against,  281  §  18, 

effect  of  violation  of  condition  by  originally  assured,  283  §  23. 
effect  of  increase  of  risk  by  consent  rc-insured  compiiny,  283  §  22. 

REMOVAL, 

of  property  insured,  145§15;  287§11;  290§1,4,5,8;  292§11,12; 

2P3  §  13:  294  §  18;  295  §  24. 
verbal  consent  in  Georgia,  233  §  13. 

(Sue  Locality;  Warranty  and  Representation.) 

REMOVAL  OF  CAUSES  TO  UNITED  STATES  COURT. 

when  petition  can  be  filed,  284  §4,  6;  285  §7, 10;  405  §  1. 
cause  must  be  at  issue,  284  §  6. 

effect  of  jdinder  in  aciion  with  home  corporation,  285  §9. 
effect  or  anpointnicnt  of  agent  within  State,  284  §  1, 
absolute  right  under  Constitution,  284  g  2. 
corporation  citizen  of  State  which  creuti.s  it,  284  §  2,  3, 
right  to  removal  docs  not  depend  on  order  of  State  court,  284  §  5. 
citect  of  relusal  of  State  court,  2S5  §  8. 
statute  prohibiting,  130  §21;  l;)l§22, 
(See  Foreign  Company,) 

RENEWAL, 

with  knowledge  of  forfeiture  as  waiver,  280  §  1 ;  287  §  7, 9 ;  842  §  2 ; 

318  §21  ;  350  §45;  400  §  I. 
effect  of,  with  knowledge  of  change  of  interest,  16t  §  25, 
delivery  of,  witii  knowled;e  of  changt*  of  location,  93  §5, 
with  knowledge  of  incumbrance,  1 1 1  §  57. 
knowledge  ofasHurcd  of  increase  of  risk  immaterial,  288  §  12. 
effect  of  alteration,  30  j}  3, 
authority  of  broker,  7  §  23, 
by  parol,  233  §  10. 
warranty  by,  372  §  90. 
continues  conditions  in  force,  287  §  8, 10. 
representations  in  original  application  considered  as  being  made  at 

time  of  renewal,  288  §  14. 
promise  not  equivalent  to  contract,  280  §2. 
change  of  risk  means  increase  of  risk,  286  §  3. 
premium  may  bo  paid  by  any  person,  280  §  4. 
not  effecting  of  other  innurance,  28(1  §  5. 
what  constitutes,  280  §6, 

may  be  issued  to  one  of  several  parties  originally  insured,  288     18. 
clause  for,  docs  not  continue  policy  when  there  has  been  increase  of 

risk,  148  §20. 
policy  treated  as  written  on  day  of,  160  §  6, 
application  for,  by  assignee,  46  §  16. 


i 


INDBX. 


453 


REPAIRS,  160  §  0 ;  380  §  1.  S,  3 ;  395  g  3. 

(Sec  Rebuild  ou  Replace.) 
RESCISSION,  of  adjustment  obtiiincd  bv  fraud,  181. 
RETURN  PREMIUM,  ® 

must  be  paid  or  tendered  to  assured  to  efTeat  cancellation,  518-1. 
(See  Cakcellation;  Premium.)  " 

RIOT,  394  8  19. 
RISK, 

locality  of  property  insured,  390  §3.3,4:  39185.8:  392  8  11  12' 
393  §18;  294  818;  3i)3§  24;  400  gl.  8      -      . 

(See  Locality;  Warranty  and  Representation.)   ' 

removal  of  goods,  SS?  §  11. 

may  terminate  before  expiration  of  policy,  394  §31. 

under  open  policy,  391  §  6. 

use  of  stove,  293  §  15. 

riot,  ,294  §19. 

invasion,  293  §  9 ;  294  §  17. 

on  vessel,  294  §  30 ;  295  §  23. 

veasel  submerged  to  prevent  damage,  3C3  §  14. 

vessel  in  dry  dock,  391  §  7. 

vessel  lying  at  anchor,  293  §  16. 

vessel  lying  at  wharf,  393  §  10. 

exemption  from  liability,  53  §  3. 

delivery  of  renewal  with  knowledge  of  change  of  location,  03  §  5. 

loss  by  freshet  not  covered  by  insurance  against  loss  by  storm,  290  §  1. 

insurance  by  marine  company  authorized,  to  insure  against  firo,  895 
§33. 

SALTPETRE,  storing  or  keeping,  39b  §  10. 

(See  Stoking  and  Keeping.) 
SAVING  OP  PROPERTY,  efforts  of  assured,  113  3  08. 
SET-OFF, 

claims  purchased  by  ro-insuring  company  against  amount  due  under 
cpntract  of  re-insurance,  280  i?  13. 

(See  Damages;  iNsoiiVENCY;  Mutual  Companies.) 
SOLICITOR,  agent  of  company,  19  §  87. 
(See  Agent;  Hiioker.) 
STATUTE. 

effect  of,  on  right  to  contract,  334  §  61. 

valued  policy,  343  §  3, 
STATUTE  OP  FRAUDS,  alienation  void  by,  37  §  33. 
STATUTE  OP  LIMITATION, 

assessment  in  mutual  companies,  193  §  61. 

declaring  contrict  void,  eti.-ct  of,  upon  waiver,  410  §  1. 
(See  Limitation  Clause.) 
STORING  AND  KEEPING, 

knowledge  of  agent,  100  §  37;  399  §  13;  301  §  33;  407  §  3. 

estoppel  by  statement  of  agent  that  policy  covers,  100  §  34. 

presumption  as  to  knowledge  of  company,  297  ^  5. 

notice  to  company  in  applicati(m,  i03  §  8. 

quantity,  396  Ji  2 ;  398  §  11 ;  399  §  13. 

question  for  jury,  298  g  11 ;  301  §  21.  23. 

prohil)ited  article  part  ol  stock,  297  §  3,  6;  299  §  13, 14,  15;  800 
820;  301  §33 

lino  of  business,  296  §  1 ;  397  §  3;  399  §  14, 15;  300 § 30. 

expert  testimony,  line  of  business,  105  §  16. 

materials  used  in  busines.s,  297  §  6. 

kerosene  oil,  397  §  7  ;  298  §  8;  299  §  13;  300  §  18;  301  §33;  406  §  1. 

flour  dust,  122  §  9. 


454 


INDEX. 


STORING  AND  KEEPING— eontinved. 

liquors  contrary  to  law,  14^  §  4. 

saltpetre,  298  §  10. 

gasoline,  299  g  12. 

fluid  for  lighting  purposes,  300  §  16  ;  407  §  2. 

alcohol,  800  §  17. 

naphtha,  406  §  1. 

gunpowder,  209  §  14. 

evidence  of,  on  issue  of  fraud,  298  §  9. 

effect  of  rate  of  premium  charged,  297  §  3. 

does  not  affect  clause  against  increase  of  risk,  297  §  4. 

no  in'crence  that  policy  is  sent  as  compliance  with  application, 
296  1$  1. 
STOVES  AND  PIPES,  warranty  and  representation,  355  §  7;  412  §  4. 
SUB-AGENT,  authority  of,  8  §  27. 

(SeeAoENT;  Bbokeb.) 
SUBROGATION, 

who  may  sue,  802  §  3;  305  §  11 ;  414  §  3. 

damnges,  303  §  7. 

interest  part  of  damages,  109  §  40. 

mortgagor  and  mortgagee,  176  §  16;  178  §  28;  179  §  30;  180  §  42 ; 
182  §46,  47;  302  §  4. 

lessor  and  lessee,  804  §  10. 

vendor  and  vendee,  802  §  2. 

when  company  acquires  right,  304  §  8. 

liability  of  party  whose  wrongful  act  caused  loss,  303  §  7. 

suit  maiutamable  in  another  State,  803  §  5. 

not  prevented  by  release  signed  by  assured,  303  §  6, 

action  should  be  brought  iu  name  of  company  and  assured  jointly, 
887  §  20. 

right  to,  does  not  depend  upon  company  being  legally  bound  to  in- 
demnify assured,  302  g  1. 

injunction  at  instance  of  company  restraining  settlement  of  suit 
brought  by  assured  against  wrongdoer,  304  §  9. 
(See  MoBTGAflOR  and  Mortoagkk.) 
SUNDAY,  contract  made  on,  142  §  1. 
SURVEY, 

omission  to  mention  house,  360  §  84. 

reference  to,  in  policy,  359  §  30. 

(See  Diagram;  Plan;  Warranty  and  Representation.) 
SURVEYOR, 

the  word,  does  not  limit  the  word  agent  in  written  nuthurity,ll  g  48. 

TAXATION, 

foreign  comfinny,  185  §  48;  116  g  64. 

agent  of  foreign  company,  127  g  1. 

for  purpose  of  fire  department,  132  §  28. 

sale  for  taxes,  81  §  47. 

tnx  on  premiums,  305  §  2. 

on  amount  of  premiums  collected,  S05  §  1. 

foreign  companies  in  Georgia,  135  §  40,  47. 

in  St.  Paul,  131  §  24. 

in  Memphis,  132  §81. 

(See  Foreign  Companies.) 
TENDER, 

of  amount  received  on  adjustment  rescinded  for  fraud,  1  §  1. 

of  return  premium.     (See  Cancellation.) 
THEFT,  306  §1. 


INDEX. 


TITLE, 


plication, 

§4. 


180  g  42 ; 


1  jointly, 
ind  to  in- 
tt  of  suit 


STATION.) 

y,ll§48. 


1. 


knowledge  of  agent  or  company,  100  §  37;  300  §  2;  307  ^  U;  315 

§  4b;  411  §  0. 
estoppel  by  agent's  failure  to  insert  interest  in  policy,  96  ?  18 
policy  issued  without  application.  31J  ^  43;  310  §  51.      ' 
waiver  by  unanswered  questions  in  application,  408  §  3 
warranty  and  representation,  355  §  8;  357  §  17,  20;  358  8  25;  359 
g  28,  29;   364  g  63;  365  §  60;    3(17  §  75;  308  §  80;  369  8  82; 
371  §  90;  373  §  98 ;  374  §  103;  408  §  4. 
fraudulent  representation  as  to  iacumbrance,  408  §  2. 
concealment,  65  §  6,  9. 
what  constitutes  ownership,  409  ^0. 
interest  under  contract  of  purchase,  309  §  17;  312  §  35. 
possession  under  contract  of  purchase-,  308  S  13;  310  !^  23  ;  314  S  43• 
310  §  54 ;  408  §  5.  ' 
lien  reserved  by  vendor,  307  §  10 ;  3i0  ^  26;  311  §  29;  314  §  45. 
clmttel  mortgage,  306  §  4;  307  §  8 ;   JOO  §  16;  311  §  32  ;  313  §  34  ; 
313  §39;  314  §41.                                                                 *       ' 
deed  of  trust,  310  §23. 
void  tax  sale,  154  §  21. 
of  assignee,  29  §  33. 

assured  insured  as  superintendent,  318  §  57. 
married  woman  under  will,  315  §47. 
tenant  from  year  to  year,  306  §  1. 
possession  of  tenant,  317  §  56. 
letting  house  to  tenants,  33  §  59.    " 
partial  vacancy,  28  §  25. 
partnership,  308  §  14. 
lease,  310  §  25,  27;  311  §  28,  31 ;  313  §  39. 
warehouse  receipts,  300  g  3;  309  §  20. 
trespasser,  311  §  30. 

purchase  at  orphans'  court  sale,  312  §  37. 
dower,  814  §  40;  316  §  52. 
lien,  317  §  50. 

when  required  to  disclose,  309  §  19, 21. 
competency  of  evidence  of  assured's  wife,  104  §  11. 
insurance  under  an  assumed  name,  157  §  45. 

conveyance  obtained  by  fraud,  308  §  12. 

goods  in  auctioneer's  hands,  309  §  18. 

wood  piled  under  contract,  307  §  9. 

policy  to  separate  parties  lamed,  308  §  15. 

naked  possession,  310  §  24. 

not  wholly  detirmined  by  record,  312  §  33. 

interest  of  third  party  in  profits,  313  §  38. 

as  interest  may  appear,  313  §  30 ;  316  §  49. 

owning  majority  of  shares,  315  §  46. 

variance  in  name,  306  §  2 ;  314  §  44. 

what  sufficient  description.  314  §  43. 

ert'ect  of  acceptance  of  policy,  315  §  48. 

notice  l>y  making  loss  payable  to  third  party,  315  §  30;  403  Jj  1,  5. 

right  of  reconveyance,  318  §  59. 

policy  issued  to  two  jointly,  318  §  00. 

lien  lor  unpaid  debt,  318  §  58. 

buying  property  tiirough  another,  317  §  55. 

possession  under  verbal  gift,  316  §  58. 

half  owned  by  assignee,  318  §  61. 

as  affected  by  validity,  319  §  63;  409  §  6. 

as  affected  by  verbal  arrangements,  318  §  01. 


456 


INDEX. 


TITLE— emtinued. 

eate  on  judgment  and  execution,  807  §  7. 

possession  and  ants  of  ownership,  307  §  5,  G. 

effect  of  false  statement  in  prools,  255  i;  20. 

waiver  of  objection  by  renewal,  340  §  21. 

materiality  question  for  jury,  254  g  4. 

effect  of  mortgagee  clause,  397  §  2. 

deed  not  admJEsible  in  evidence  without  proof  of  record  and  de- 
livery, 112  §  02. 

(See  iNSUKABTiE  Inteuest  ;  Interest  in  Policy.) 
TOTAL  LOSS,  not  absolute  distinction,  68  §  15. 
TURPENTINE,  storing  or  keeping.  300  §  20. 
(See  Stohing  and  Keei'ino.) 
TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE, 

effect  on  contribution,  74  §  1. 

applies  to  each  item,  320  §  1. 

mutual  companies,  189  §  37;  205  §  118. 

UNITED  STATES  CONSTITUTION, 

foreign  compnny  transacting  business  through  agent  not  engaged  in 
commerce.  130  §  19. 
USAGE  AND  CUSTOM, 

when  evidence  admissible,  110  §68;  330  §  1,  2,  8,  4. 
cnncellation,  57  j5  17,  18. 

effect  of,  on  consummiition  of  contract.  73  §  14. 
relerence  to  business  or  occupation,  322  tj  10. 
what  property  is  covered  by  policy,  382  ^  20. 
other  companies  in  writing  policies,  320  «?  3. 
as  to  policies  issued  to  other  parties,  56  §  11. 
presumption,  320  §  4. 
cannot  be  inTerrcd,  321  §  5. 
amount  of  stock  on  hand.  320  §  2. 
wiicn  assured  bound  by,  87  §  1. 
among  biokers,  108  §  38. 
USE  AND  OCCUPATION. 

knowledge  of  agent,  323  §  4  ;  325  §  9:  336  g  12;  327  §  18. 

i)i-esumption  ns  to  knowledge  of  company,  380  i^  12. 

incidental  to  business,  324  t?  0 ;  325  ^7;'  326  g  12. 

presumption  as  to  knowled^  e  of  business,  320  §  13. 

change  of,  326  ^15, 

by  tenant,  323  §  1. 

change  of  tenants,  327  8  17. 

extra  hiiziirdous  purpose,  323  §  8. 

occasional  use,  327  ^  16. 

as  affected  by  taking  shavings  from  one  building  to  another,325  g  11. 

increase  of  risk,  324  g  6. 

not  affected  by  question  of  increase  of  risk,  323  g  3. 

when  policy  issued  as  affecting  question,  increase  of  risk,  824  §  5. 

hotel,  does  not  prevent  being  homestead,  327  §  20. 

qutstion  for  juiv,  325  J?  8;  327  g  19. 

waiver,  325  S  10;  326  §  14. 

warranty  and  representation,  854  ^  0 ;  350  §  31 ;  363  §  48:  308  g  5"), 

5?  ;  360  S  71,  72 ;  869  §  84  ;  373  §  100 ;  374  §  106 ;  4 12  §  3. 
declaration  of  assured,  118  g  70,  72. 

explosion  of  engine  incidental  and  essential  to  business,  110  §  2. 
dctensc  of,  available  imder  general  issue,  244  §  37. 
effect  rate  of  premium,  825  §  8.  • 

defense  of,  under  Maine  statute,  837  §  10. 


I 


IliDBX. 


457 


VACANT,  OR  UNOCCUPIED, 
notice 


ce  to  or  knowledge  of  agent  or  comuanv  I00aft7. 


aud  de- 


;agcd  in 


I25gll. 
1§B. 


fi3  g  0.-.. 
^3. 


333  §13; 
verbal  consent  to,  95  §  IfT. 
notice  to  agent  of  intended  vacancy,  06  8  17:  329  8  6 
whatj|tUute8.  330  §  11 ;  331818;  334§26;  335§87;  837§34; 

within  control  of  assured,  146  §  16;  333  818 

beyond  assured's  control,  328  §  3. 

as  to  increase  of  risk,  143  §  1,  3;  147  §  25 ;  332  §  15;  836  S  81 

leaving  few  articles  of  property  in  the  house,  829  §  8 ;  833  §  16 ;  884 

8  a ;  oaV  9  41.  «»       > 

leaving  tenant,  338  §  40. 
change  of  tenimts,  335  §  29,  30. 

Eortion  of  a  tenement-house.  833  8  22. 
otel.  340  8  44.  ** 

dwelling,  341  §  46, 

summer  residence,  336  §  32;  340  §  45. 
school-house,  387  §  35. 
mill  or  factory,  338  §  88. 
boat,  835  §  28. 
sawmill,  333  §  19. 
<l"e8ti.m  for  jury,  330  §  10 ;  333  §  20;  837  §  84 ;  839  §  42,  48  j  340 

waiver,  338  §36;  344  §  11. 

warranty  or  representation,  362  8  50 ;  866  S  74.      ' 

part  cnly,  321)  §  6. 

sleeping  in  building,  332  §  14. 

farm  hands  and  barn,  328  §  4. 

occupation,  living  in,  not  mere  superviBion,  830  8  9. 

removal,  830  §  10.  »         o 

removal  of  property,  332  §  17. 

company  bound  to  cancel  on  obtaining  knowledge,  838  8  37. 

question  of  intent,  337  §  34.  , 

VALUATION,  warranty  and  representation,  360  §  36;  861  §  44. 
VALUE,  adjustment  no  evidence  of,  as  to  third  parties.  2  8  7. 
VALUED  POLICY,  f         .     o 

under  Wisconsin  statute,  83  §  17. 

proof  of  interest,  341  §  2. 

statute  making,  S42  §  3. 

valuation  conclusive,  342  §  4. 

what  constitutes,  341  §  4. 

renders  arbitration  clause  inoperative,  41  8  8. 
VENDOR  AND  VENDEE, 

interest  in  policy,  308  §  12. 

subrogation,  302  §  2. 

other  insurance,  393  §  1. 
VERDICT,  contrary  to  laws  of  matter,  set  aside,  106  §  28. 

WAIVER, 

by  ngent,  9  §  30;  347  §  26 ;  349  §  84;  410  §  2. 

authority  of  agent,  11  §44,  4(i;  16  §70;  17  §76;  18  §84;  82  §  104. 

authority  of  agent  as  to  written  consent,  10  §  85. 

authority  of  broker,  7  §  22. 

agent  to  take  application,  no  authority,  18  §  65. 


458 


INDEX. 


Vf  MYER— continued. 

knowledge  as  an  element  of,  343  §  4;  344 §  11, 15;  347  §  34  ;  399 

§5;  404  §5;  407  §3;  410  §5. 
knowledge  of  assured,  350  §  44. 
renewal  with  knowledge,  286  §  1;  343  §2;  346  §31;  350  §45; 

406  §  1. 
constructive  notice,  349  §  30. 
error  to  reject  proof  of  agency,  1 1 1  §  61 . 
by  adjuster,  10  §  37 ;  340  §  32;  318  §  37. 
in  adjustment,  348  §  32,  33 ;  349  §  39 ;  350  §  46. 
proofs  of  loss,  351  8  1,  3 ;  353  §  5,  6, 7 ;  853  §  8 ;  254  §  10 ;  256  §  22 ; 

257  §  28,  80;  258  §  34,  35,  39;  259  §  40,  43;  360  §  44,  40,47, 

48;  261  §  49,  53,  54;  262  §  55,  58,  59;   263  §  61,  62,  64,  65  ; 

264  §  67,  68,  71 ;  266  §  78,  79,  80.  81 ;  367  §  83,  86;  342  §  1 ; 

343  §  5;  351  §  47,  50;  403  §  1,  3. 
denial  of  liability,  arbitration  clause,  42  §  11. 
of  arbitration  by  omitting  to  make  rt  (uest,  41  §  10. 
by  arbitration,  348  §  29. 
effect  of  appraisal  agreement,  410  §  4. 
notice  of  I«>s3,  117  §  4  ;  314  §  0,  8 ;  215  §  9 ;  216  §  16 ;  268  §  1 ;  345 

§19. 
certificate,  62  §  14  ;  342  §  3;  410  §  3. 
must  be  pleaded,  242  §  12 ;  244  §  29;  245  §  30. 
averment  performance,  allows  proof  of,  343  §  16,  21. 
evidence  of,  109  §  45. 
question  (or  jury,  255  §  19;  345  §  17. 
of  unanswered  questions  in  application,  37  §  3,  6,  7 ;  350  §  43 ;  408 

§3. 
defense,  increase  of  risk  by  neglect  to  cancel,  144  §  7  ;  145  §  15. 
alienation,  30  §  38 ;  34  §  62. 
other  insurance,  319  §  11,  13,  13  ;  234  §42  ;  226  §  51 ;  337  §  54  ;  345 

§  18;  349  §  39;  351  §  47;  353  §  51  ;  400  §  3. 
title,  306  §3;  307  §11;  313  §30;  315  §48;  411  §6. 
use  and  occupation,  325  §  10;  326  §  14. 
vacant  or  unoccupied,  338  §  36;  344  §  11 ;  349  §  37. 
payment  premium,  9  §  30  ;  56  §  11 ;  212  §  153  ,  246  §1,3;  247  §  7, 

10 ;  248  §  11 ;  249  §  16,  22 ;  344  §  !«,  ;  :. 
limitation  clause  by  agents  and  adjust-.'       ;•   -'  37;  "167  §  2,  4;  108 

§  6,  7,  8;  170  8  18 ;  171  §  22,  33 ,  J'.    ^    ;■  •  343  §  5 ;  403  §  1. 
breach  of  warranty,  351  §  50. 
cannot  cure  want  of  insurable  interest,  ii'<>l       1 
knowledge  essential,  849  §  86;  350  §  43,  4« ;  351  §  48;  353  §  5',>, 

63,  64. 
failure  to  make  objection,  351  g  50;  353  §  51. 
laches  of  company  misleading,  350  §  41. 
policy  voidable  only,  348  §  30 ;  349  §  36 ;  350  g  41. 
authority  not  presumed,  350  §  40. 
what  constitutes,  846  §  30;  847  §  36;  348  §  38;  849  §  35;  361  §  48; 

353  §  63 ;  353  §  55. 
by  verbal  consent,  346  §  23;  347  §  35. 
delay  and  silence  not  enough,  349  §  38;  358  §  66. 
evidence  of  officer  as  to  his  own  power,  109  §  47. 
evidence  of,  in  other  cases,  104  §  12. 
must  be  intentional,  36  g  68. 
distinction  between  conditions  affecting  claim  and  those  operative 

after  a  loss,  843  §  9. 


INDEX. 


45d 


WAIVER— eoMinued.  ■ 

promise  to  indorse  consent,  343  §  8. 

may  bo  inferred,  343  §  7. 

effect  false  representation  of  assured,  343  §  6. 

not  necessary  to  reform  policy,  353  §  57. 

condition  requirinsf  written  consent,  348  p  31. 

when  conditions  of  policy  operative,  34^  §  16. 

after  issue  of  policy,  346  §  33 ;  410  §  2. 

by  demanding  proofs  of  loss,  349  g  36. 

by  demanding  plans  and  specifications,  344  §  14. 

condition  requiring  full  disclosure  of  facts  effecting  risk,  344  §  13. 

by  direction  of  company,  to  save  property,  351  §  49. 

by  silence,  on  notice  of  risk  under  open  policy,  391  §  6. 

by  election  to  rebuild,  271  §  5. 

not  80  easily  established  when  relates  to  validity  of  claim,  67  §  9. 

by  mutual  companies  in  receipt  of  assessment,  203  §  111 ;  204  8  115 : 

211  §149. 
non-payment  of  assessment,  204  §  1 1 3. 

mutual  company,  by  assessment,  ISO  g  21 ;  200  §  96;  202  §  105. 
by  mutual  companies,  payment  of  premium,  209  §  138. 
mutual  company,  of  assessment,  209  §  140. 
by  mutual  company  in  assessment,  with  knowledge  uf  forfeiture, 

183  §  1. 
payment  of  premium  to  mutual  companies,  186  §  25. 
by  mutual  company,  203  §  109. 
by  return  of  policy  by  mutual  company,  201  §  49. 
forfeiture  by  mutual  companies,  197  §  83. 

(See  Mutual  Companies.) 
acceptance  of  premium  waives  condition  suspending  liability,  103 

§63. 
by  payment  of  dividend,  399  §  5. 
of  proofs,  under  Canada  statute,  404  §  6. 
effect  of  statute  declaring  contract  void,  410  §  1. 
WAREHOUSE  RECEIPTS,  306  §  3  ;  309  §  20. 

WARRANTY  AND  REPRESENTATION, 

distance  between  buildings,  358  §  26 ;  375  §  109;  411  §  1 ;  412  §  5; 

413  §7,8. 
incumbrance,  90  §  21 ;  368  §  81 ;  370  §  80;  372  §  94  ;  373  §  99, 101, 

102;  374  §  104;  377  §  89;  408  §  2. 
incendiary  fire,  354  §  3;  367  §  78  ;  413  §  6. 
other  insurance,  356  §  14. 
overvaluation,  356  §  15;  363  §  53.  56 ;  401  §  2. 
title,  309  §  31 ;  355  §  8 ;  357  §  17,  20 ;  358  §  25 ;  359  §  28,  29;  304 

§  63;  365  §  66;  367  §  75;  368  §  80;  369  §  83;  371  §  90;  373 

§98;  374  §103;  408  g  4- 
occupation,  822  §  10;  323  §  4 ;  354  §  5,  6 ;  sno  §  31 ;  362  §  48;  363 

§  55,  67 ;  366  §  71,  72 ;  369  §  84 ;  373  §  100 ;  374  §  106 ;  412  §  3. 
vacant  or  unoccupied,  362  §  50 ;  366  §  74. 
value,  360  §  36 ;  361  §  44. 
goods  in  store  when  contained  in  tavern,  86  §  4. 
void  tax  sale,  154  §  21. 
mortgage,  307  §  8. 
brick  fire  wall,  371  §  92. 
<leviation  by  boat,  361  §  43. 
account  of  stock,  358  §  21. 
stoves  and  pipes,  355  §  7 ;  369  §  83 ;  412  §  4. 


460 


INDEX. 


WARRANTY  AND  REPRESENTATION— (»n«ma«i. 
occupation  adjoining  buildings,  360  §  84. 
brick  building,  854  §  2. 
locality  of  property  insured,  890  §  2,  4;  291  §  5,  8;  292  §  11,  12;  293 

§  13;  294  §  18;  295  §  24;  355  §  12;  350  §  13;  406  §  1. 
words  descriptive  of  present  use,  854  §  1,  5;  335  §  9;  304  §  59;  873 

§  100:  374  §106. 
what  constitutes  warranty,  330  ?  37;  308  §  45;  300  §  73. 
application,  when  made  warninty,  358  §  23;  808  §  79. 
application  and  policy  construed  together,  858  §  28. 
reference  to  application  to  another  company,  305  §  04. 
answers  not  responsive,  302  §  49. 
reference  to  plan  or  diagram,  373  §  97;  411  §  1 ;  413  §  5;  413  §  7,  8. 

(See  Diagram;  Plan.) 
reference  to  survey,  359  §  30. 
omission  of  house  in  survey.  C^9  §  84. 
effect  of  signing  blank  form  of  application  filled  up  by  ngcnt,  303 

§53. 
effect  of  knowledge,  300  §  34,  33;  361  ^  39,  40,  41 ;  363  §  CO;  304 

§03;  374  §107. 
knowledge  of  assured.  308  §  4T;  303  §  51. 
not  aflected  by  assured  failing  to  read,  305  §  05. 
distinction  between,  as  affected  by  knowledge,  307  §  76. 
opinion  of  broker,  360  §  70. 

estoppel  by  agent's  mistake  in  description,  94  §  12. 
effect  of  adjustment  and  promise  to  piy,  358  §  87 ;  373  §  95, 
materiality,  8l>8  §  3;  iiU  §  4 ;  857  §  19;  362  §  45,  49;  803  §  50 ;  804 

§03;  365  §67;  370  §  88. 
ambiguity,  355  §  II  ;  368  §  81. 
not  extended  by  construction,  861  §  48;  363  §  54. 
breach  must  be  substantial,  355  §  9,  10;  375  §  108. 
representations  made  warranties  by  coudilion,  856  §  16;  360  §  88; 

414  §  0. 
question  for  jury,  270  §  17;  375  §  108. 
parol  evidence  inadmissible,  374  §  107. 
waiver,  851  §  50. 
promise  or  stipulation,  354  §  1. 
breach  in  respect  to  one  item,  370  §  83. 
in  regard  to  time,  354  §  1. 

warranties  must  bo  true  at  time  delivery  of  policy,  367  §  77. 
effect  of  statute,  364  §  61. 
under  Oeorgia  statute,  364  §  60. 

under  Massachusetts  statute,  :!00  §  38;  363  §  46;  374  §  103. 
under  Kentucky  statute,  334  §  58 
induced  by  fraud  of  compiiny's  agent,  371  §  93. 
use  of  word  warranty  not  necessary,  370  §  87. 
representation  honestly  made,  357  §  18.  ■ 

warranty  construed  without  reference  to  risk,  358  §  24. 
not  necessary  to  refund  premium,  800  §  33. 
as  to  rate  of  premium,  305  §  68,  00. 
expressions  of  opinion  and  belief,  371  §  91. 
breach  of,  must  bu  set  up  in  answer,  211  §  4. 
effect  of  application  for  renewal,  378  §  90. 
no  forfeiture  if  representation  true  at  time  of  renewal,  888  §  14. 
truth  of  condition  precedent,  302  §  47. 
indorsement  becomes  warranty  on  renewal  under  Canada  statute, 

412  §  2. 


INDIilX. 


461 


12;  293 
CI);  373 


3  §  7,  8. 

[cnt,  863 
CO;  364 


C6;  864 


(60  §  82 ; 


§14. 
.  statute, 


WATCHCLOCK,  effect  of  knowledge  of  agent,  119  8  P7 
WATCHMAN,  '     ' 

continuing  obligation,  370  §  3. 

effect  of  levy  by  sheriff,  376  §  1. 

warranty  and  l)reach,  question  for  jury,  268  §  4. 

effect  ot  knowledge  on  breach  of  warranty,  377  8  8 

substantial  compliance,  S78  §  2;  377  §  C. 
WHAT  PROPERTY  18  COVERED  BY  POLICY, 

in  trust  or  on  consignment,  378  §  1 ;  382  §  24. 

belonging  to  assignee,  45  §  14. 

additions  to  stock,  231  §  7 ;  383  §  29. 

machinery,  what  includes,  378  §  :j ;  379  §  8;  880  §  14 ;  383  §  27 

tools  and  apparatus,  381  §  17:  382  §  23. 

stock  of  hair,  wrought  and  raw,  and  in  process,  381  §  18. 

heater,  382  §  19. 

dry  goods,  382  §  20. 

all  or  either  of  certain  buildings,  379  §  9. 

freight  cars,  owned  or  used,  380  §  10. 

property  in  freight  buildings,  ;i80  §  11, 

effect  of  use  of  word  "  materials,"  380  §  13. 

specific  property  in  warehouse,  378  §  2. 

live  stock,  379  §  .5. 

mule-power  r.ot  part  of  gin-house,  160  5  6. 

stock  in  tannery,  379  §  7. 

hay  existing  at  date  of  policy,  382  §  21. 

what  included  by  mill,  382  §  22. 

cellarwall,  380§  13. 

plate,  381  §  15. 

wheat,  in  stack,  381  §  16. 

guano  includes  fertilizur,  383  §  20. 

dies,  383  §  28. 

presumption  as  to  knowledge  of  company,  380  §  13. 

removal  partitions  in  a  store,  378  §  4. 

contained  in,  382  §  25. 

as  a  question  for  court  or  jury,  270  §  15;  382  §  20;  383  §  28. 

oral  evidence  admissible  to  show,  112  §  63. 

property  belonging  to  other  persons  destroyed  by  sparks  from  plaint- 
iff's engines,  379  §  6. 

WHO  MAY  SUE, 

administrator,  162  §  13;  384 §  2;  386  §  15. 
administrator  and  heir  may  join,  383  §  16. 
party  to  whom  loss  is  payable,  161  §  9;  884  §  3,  4;  385  §  11;  386 

§12,  14;  414  §2. 
mortgagor  and  mortgagee,  174  §  6;  178  §  23;  384  §  1;  386  §  17;  387 

§18;  414  §1,2. 
mortgagee  and  assignee  of  mutual  policy,  203  §  108. 
pioper  to  join  assured  and  party  to  whom  loss  is  payable,  386  §  13. 
insurance  on  goods  in  trust  or  on  commission,  385  §  5,  7,  9. 
subrogation.  302  §  3;  305  §  11. 
State  in  possession,  152  §  12. 
all  parties  interested  in  insurance,  159  §  6. 
policy  obtained  account  of  other  owners,  385  §  5. 
assured  may  recover  to  extent  of  interest,  885  §  10. 
factor  holding  policy  in  his  own  name,  885  §  9. 
assured  not  necessary  party,  385  §  8. 


r 


402 


INDEX. 


WHO  MAY  SUE—eontinued. 

trustee  of  espress  trust,  885  §  7. 

companies  nnd  assured  should  join  to  recover  damages  from  (Ire 

caused  by  wrongful  act,  387  §  20;  414  §  3. 
assignee  and  real  party  in  interest,  887  §  19. 
parties  to  mutual  policy,  184  §  7. 
WILLFUL  BURNING, 

must  be  specially  averred  as  a  defense,  244  §  23. 
company  not  liable  for  act  of  agent  or  adjuster,  unless  autharizod  or 
ratified,  0  §  34. 

(Bee  BcRNiNO  dt  Dbsiqk.) 
WISCONSIN  STATUTE, 

as  to  valued  policy,  83  §  17. 


,N 


'^O 


^l:i 


WaoiK  NuMBEB  OP  Paoes,  490. 


from  fire 


larjzcjcl  or 


N, 


N. 


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